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Thursday, December 15, 2005

Texas Case Fuels More Debate on Pence Media Shield Law Proposal to Protect Journalists' Sources

Con Law experts say hard cases make bad law, but that doesn't keep them from continuously generating sometimes heated debate about proposals for shield laws to protect journalists' sources. There is just such a case now in Houston, as described recently by the Houston Chronicle.

Here's how Chronicle reporter Dale Lezon described a ruling earlier this week to delay till nexst month a hearing to rule on the case:

"State District Judge Mark Kent Ellis set the hearing for Jan. 10 to consider whether KPRC-TV (Channel 2) must give the Harris County District Attorney's Office unaired videotape from an investigation of possibly predatory home loans.
"The subpoena also requests outtakes - unused videotape - from a story the station broadcast a few months ago about a man who offers dogs on consignment. KPRC refused, saying the subpoena violates the First Amendment principle of freedom of the press."


Most states have shield laws that to a greater or lesser degree provide protection for journalists who decline to reveal sources to those outside the newsroom, but there is no such law on the federal books. The existing state-level shield laws for journalists typically provide protection similar to that allowed lawyers, doctors and ministers.

Rep. Mike Pence, R-IN, has proposed a federal shield law that has drawn significant public discussion and debate, including his presentation of the 2005 Distinguished Journalist Lecture at The Heritage Foundation in October.

Regular readers of Tapscott's Copy Desk know I am an enthusiastic supporter of the federal shield law concept for the same reason I support protection of shields for attorney clients, doctors' patients and those being helped cope with personal problems by their ministers or other professional counsellers.

The Houston case highlights the lack of agreement on the Right on the propriety of shield laws for journalists. Pence is chairman of the House Republican Study Committee, but other influential folks on the Right have been less than enthusiastic.

Amy Ridenour, for example, who heads the National Center for Public Policy Research, edits a widely read blog and has periodically addressed the shield law issue, presenting a cogent case against the proposal.

Yesterday, Amy noted the Houston case and observed that it illustrates one of the key weaknesses she sees in shield laws:

"And what if the station's evidence - evidence the station wants to withhold - would be key to the conviction of someone who, without the conviction, would go on to harm others? Is the station's 'freedom of the press' (in quotes because the station remains free to publish these materials, so in a real sense its freedom to publish is unabridged) a higher priority than the safety and security of the citizenry? Not to me."

Put otherwise, as important as the First Amendment is, it is less important than protecting the public from the crimes that would be committed by criminals freed as a result of prosecutors being barred from using evidence held by a news organization.

This argument from Ridenour and other critiques of media shield laws is an important one and happens to be one with which I basically agree. Nobody should be above the law, including lawyers, doctors, ministers and journalists.

And indeed that is why none of the shield laws currently on the books in the states provide absolute protection, nor does the Pence proposal at the federal level. Though rarely necessary, it is typically possible for the attorney-client, doctor-patient, minister-congregant and journalist-source privileges that exist on the state level to be pierced under certain circumstances.

So what about the Houston case? Hard cases like this do indeed make bad law, which is why it is important that courts retain a certain flexibility that allows preservation of important principles while not allowing that protection to negate other possible more important principles.

In Houston, it may be possible for the requirements of justice to be satisfied without making the television news report's unbroadcasted outtakes public by having the judge decide after reviewing the outtakes in chamber. The notes of a print reporter that are not published in a newspaper article are analogous to broadcast outtakes.

Why is it important to protect journalists' sources to the greatest possible extent under the law? Imagine that you are a federal contract administrator responsible for hundreds of millions of dollars worth of government acquisitions. You discover evidence that one of your agency superiors is taking bribes from a contractor but you fear retaliation from other high ranking officials if you publicly expose the bribee.

This kind of situation is far more prevalent than most people realize because the insularity of the federal civil service allows whistle blowers to be punished through adverse actions that do not otherwise appear to be retaliatory in nature.

If you fear your identity will not be protected by a journalist, odds are excellent you will simply keep what you know about corruption to yourself.

Believe me, having covered waste and fraud in the federal government for many years during my career as an investigative journalist, I can tell you such fears are very real and are a major enabler of the rampant corruption so often seen in federal programs.