Shield Laws Are a Constitutional Privilege

Sept 17, 2013

The U.S. Constitution cannot be more clear in its concise and ordinary meaning of the words that “the Congress shall make no law … abridging the freedom … of the press…” At the time that Amendment was written, there were thousands of newspapers published in the U.S., from major papers to single-issue publications, exactly the same as today, only the media (Internet) has changed.

Instead of single sheets of paper, today’s press is composed of thousands of individuals writing and broadcasting for major print and electronic communications outlets as well as single-issue experts.

The purpose of a free press and the historic judicial recognition of shield laws has been to implement the intent of the First Amendment – to provide a Fourth Estate or final check-and-balance of the government. It is those Congressional legislators that our forefathers feared and from whom they sought to protect us by the adoption of the First Amendment.

The “government” is fair game for the press. We are entitled to know what the government is doing, why it is doing it, and what interests the actions of the government protect, exclude, or favor. The very idea of the Congress, which is constitutionally prohibited from regulating the press, to be contemplating press regulation is truly the most abhorrent disregard of our governing document.

The “government” already regulates the press by granting or denying access to reporters, prosecuting whistle-blowers who deliver information to the press as well as the press itself to “chill” such disclosures, and most commonly, by the extravagant use of the national security classification process to shield access.

The idea of the national security classification system is to conceal national security issues and actions, not to hide illegality, embarrassment, or incompetence. The regulation of the press should be managed by the press itself through the creation of a national press association charged with responsibility for adoption of ethical and professional rules of conduct and other means to encourage a free and diligent press.

In the absence of government regulation, the press and the public can always seek judicial consideration in matters pertaining to the press whether it be the harm caused by the failure of officials to produce information under the Freedom of Information Act (FOIA) or claims of defamation based on libelous or slanderous communications.

Shielding of the press and its sources should be considered on a case-by-case basis without a one size fits all mentality. Shielding in one case could be an actionable tort in another depending on the facts of the case. Accordingly, when claims involve government disclosure, the widest possible latitude must be granted in favor of the public’s right to know and against censorship.

If Congress seeks to take action regarding the press, it should be to recognize a journalistic privilege interpreted by the courts in the broadest and most inclusive terms possible to stimulate and protect the free expression of communications between Americans and our government, not to inhibit freedom. One can only hope that Constitutional principles will prevail from the Peoples’ House.

For more

© Copyright 2013 Kimberly Dvorak All Rights Reserved.

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