Are journalist shield laws unconstitutional?

[geek tragedy]

In general, journalist shield laws extend privileges to journalists that allow them to avoid cooperating with civil subpoenas and criminal investigations.

http://en.wikipedia.org/wiki/Shield_laws_in_the_United_States

shield law is legislation designed to protect reporters' privilege, or the right of news reporters to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. Currently the U.S. federal government has not enacted any national shield laws, but most states do have shield laws or other protections for reporters in place.

These privileges are not made available to the general public, only to journalists. Note also that these protections do not exist in the absence of legislation--they are not a constitutional right, but rather a creation of statute.

However, when extending a privilege or protection to a subset of the population, that requires defining who is and who isn't eligible.

The sentiment at DU appears to be that it's a violation of the first amendment for the government to define who is and who isn't a journalist.

http://www.democraticunderground.com/10023701887

Which means passing a journalist shield law would be per se unconstitutional, since by necessity it involves a government definition of who is and who isn't a journalist.

So, what to do?

2 votes, 0 passes | Time left: Unlimited
	Extend shield protections to all citizens--no one needs to cooperate with criminal investigations.
	0 (0%)
	No shield protections for anyone. It was right to have Judy Miller sent to the slammer.
	1 (50%)
	Swallow the bitter pill and let the government hash out a rough definition of journalists in order to protect journalists
	1 (50%)
	0 DU members did not wish to select any of the options provided.
Show usernames Disclaimer: This is an Internet poll

[Glassunion]

1. In the spirit of the first amendment should this shield exist?

I believe so. Therefore, to me it would seem that this shield should exist as a right and not a privilege of a journalist.

Tricky part is when we let the our leaders decide on the definition of something, they usually screw it up.

My guess is that it will only apply to journalists on the full time payroll of any of the 6 monolith media corporations.

[geek tragedy]

2. There's the rub--if not everyone gets this right, no one but the government

can make that determination.

Courts are part of the government, after all.

[Agnosticsherbet]

3. Journalist shield laws fall under the first amendment protections.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The general public has rights under the fifth amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As I understand it, you can be compelled to testify so long as you are not incriminating yourself. (Notice there are some limitations built into the fifth.)

Both of these have been under fire by "National Security" which can be allowed depending on how the courts define this phrase "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger," which builds the National Security exception into our fifth amendment rights.

Thank you founding fathers.

[geek tragedy]

4. No they don't. Shield protections are created by statute, not by the constitution.

That's why shield laws need to get passed for those protections to apply.

Shield laws allow journalists to refuse to testify against others.

[Agnosticsherbet]

8. Sheilds laws are constitutional because they fall under "Freedom of the Press."

The Press can not do its job if it must testify and turn in its informants.

It is a pity that they need to be passed.

Here is an interesting site about Shield laws.

http://www.westga.edu/~byates/Journalist's%20Privilege/shield.htm

Branzburg v. Hayes


Supreme Court rules 5-4 that there is no First Amendment privilege allowing journalists to keep source identities secret in some circumstances.

Justice Powell’s concurrence


Courts still available to journalists if information sought is irrelevant or does not serve a legitimate need of law enforcement.

Favored case-by-case approach.

Interesting stuff.

Protecting Unpublished Information and Confidential Sources

[geek tragedy]

10. I agree they're constitutional, but that's because I think

that defining a journalist is permissible where the legislation seeks to protect journalists and expand their rights, without taking away the rights of anyone.

[NuclearDem]

5. I technically voted for 3.

But the definition has to fairly broad. None of this Durbin/DiFi defining journalists as only salaried employees of news outlets. A lot of the best journalists I follow either work for next to nothing or are only freelancers for even comparatively small outlets.

I couldn't tolerate a world where Judy Miller is considered a journalist, but someone like Allison Kilkenny or Rania Khalek isn't.

[BKH70041]

6. Complicated Question w/ No Easy Answer

I'm uncomfortable with having the government define what is and/or isn't a journalist.

For a journalist not to have to reveal their sources is something that is useful. There's people who simply wouldn't talk if they thought what they were revealing might harm them; we all know that. OTOH how many times have journalists just made people up (the "Sources close to the..." thing) to create a story? It's hard to know what to and what not to believe anymore.

But how far of a scope should that extend when it comes to those who refer to themselves as journalist? It may just have to come down to a case-by-case basis. Regardless of the decision, not everyone is going to be happy, of that we can agree.

[Marr]

7. Weak.

The problem with the bill you're defending is that it constricts the definition of "journalist". It would essentially put journalism under the official jurisdiction of big business.

There's no crisis in determining who is and who is not a journalist. The courts can already determine whether or not someone can reasonably claim to be acting in the capacity of a journalist-- and they don't need a pay stub from Comcast to make that call.

[geek tragedy]

9. So, in your view judges get to decide who's a journalist and who isn't? nt

[judgen]

11. No they can't, or actually they can.

In short unless they want to shred the 1st amendment they can not do a shield law on the federal level or the state level.

Verbatim quote: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

MAKE NO LAW is the most important part of the entire amendment.

To be able to pass a shield law, congress would need to either repeal the 1st amendment, the constitution or rewrite it in it's entirety.

[geek tragedy]

12. Shield laws do not abridge free speech nor

do they restrict press freedom.