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Thursday, February 24, 2005

Can MSM Journalists Please Get it Right On Proposed Federal Shield for Them?

Don Wycliff is the Chicago Tribune's public editor. He's also a thoughtful guy with a lot of years under his belt in the top rungs of the MSM. Despite such credentials, the Trib's public editor doesn't understand some essential points on the scope and history of a proposed federal shield law for reporters.

The proposal, which is similar to those already on the books in 31 states, has drawn lots of attention in recent months, thanks to Special Prosecutor Patrick Fitzgerald's attempt to force reporters Judith Miller of The New York Times and Matthew Cooper of Time to disclose the identities of confidential sources and other information that may or may not assist Fitzgerald in identifying who leaked some information about the wife of a Bush Iraq War critic to another Chicago Tribune columnist, Robert Novak.

The leak was the fact that Victoria Plame, wife of former Clinton and Bush White House national security aide Joseph Wilson, works at the CIA. Miller and Cooper could be slapped with 18-month jail terms if they continue to decline to answer Fitzgerald's demands.

You can read here and here why Fitzgerald's probe should have never have been started in the first place for the simple reason that whoever talked to Novak broke no law. Click on the headline above this posting to go to Wycliff's complete column.

Now back to Wycliff's column where he argued:

"I wonder whether in supporting such legislation we may be trading our birthright--the splendid informational anarchy fostered by the 1st Amendment guarantee of press freedom--for a mess of pottage. I wonder whether we may not be trading occasional outrages like the Miller-Cooper case for the everyday certainty of uncertainty that goes with being licensed by the government.
"You see, if the government gives journalists the right to be exempt from the normal obligations of citizenship, the government, ultimately, will get to decide who is a journalist. Of course nobody will admit that this is the case.
"They'll contrive some body of journalistic wise men and women, a college of cardinals, who will set standards and thresholds and regulations and such. But somebody will have to appoint those cardinals and, in the end, it will be the government that's in charge."

Two points:

First, nobody expects a federal shield law for reporters to do what Wycliff claims it would do - "the right to be exempt from the normal obligations of citizenship ..." The proposal recently introduced by Rep. Mike Pence (R-IN) and Rep. Rick Boucher (D-VA) doesn't provide an unlimited absolute privilege and neither do the state laws.

A qualified federal privilege could make it possible for law enforcement and judicial officials to compel certain kinds of testimony before grand juries, which seems to be the main thing Wycliff associates with being "exempt from the normal obligations of citizenship." Models for such qualified privileges can be found in those provided for doctors, lawyers, shrinks and clergymen.

In fact, the Pence-Boucher proposal combines a provision protecting the identity of confidential sources (this is not an absolute privilege because it doesn't define when a source is confidential)with provisions providing a limited privilege for the protection of all kinds of information, includng names of non-confidential sources, if a judge is convinced there is a reasonable ground for believing the information held by a reporter is essential to the investigation, prosecution or defense in a criminal case.

Second, why is Wycliff so worried about the consequences - government control - that could result from the appointment of a panel of "journalistic wise men and women, a college of cardinals, who will set standards and thresholds and regulations and such"? Isn't that a pretty good description of what Uncle Sam has been doing for decades - appointing allegedly wise men and women - aka "bureaucrats" - who set standards and write regulations to control major parts of our daily lives? This argument sounds like another variation on the NIMBY appeal.

There is one other aspect of Wycliff's column that bears further comment and that is this statement:

"I yield to no one in my abhorrence of government by secrecy. Almost from Day One the Bush administration has been a particularly egregious offender in this regard. Indeed, I think it is only in a Justice Department made in the image of John Ashcroft that a hunt for leakers at the White House could have become a Javert-like pursuit of two reporters."

What? Hold on. Timeout, Mr. Public Editor!

It wasn't the Bush White House going ape over the Plame leak - though the Bushies have certainly have gone ape over other leaks since taking office in 2001. It wasn't former Attorney General John Ashcroft, either.

It was many of Wycliff's coleagues in the MSM who initially went nuts with accusations that the Bushies leaked to Novak as retaliation against Wilson and condemnations of Novak for supposedly jeopardizing national security by revealing the identity of a CIA agent. Such accusations were why journalists like the editorial page of The Atlanta Journal-Constitution characterized the leak as "perilously close to treason."

Is it too much to expect journalists to characterize accurately legislative proposals like the Pence-Boucher federal shield law? Or to include critical pieces of why and how such proposals come to be proposed?

Especially when said journalists occupy visible positions like public editor of the Chicago Tribune?