Denver Bar Association
November 2008
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Federal Shield Law

by Christine McManus

Why defining "journalist" is something you should think about

Every so often, much to the protest of most journalism leaders, a movement arises on the national or local level to license journalists, either by journalists themselves, or by others.

After all, many other professionals such as attorneys, doctors, accountants, real estate agents, etc. are bound to professional conduct and regulation this way. To keep their licenses, generally, professionals in these and other areas must stay on top of their required continuing education. Sounds like a good thing — so why does this precept not apply to journalists?

The initial answer is simple: the First Amendment. What makes the answer more complex, however, are two main factors: politics and technology.

The past six-or-so years across the nation, there’s been a disconcerting rise in the number of journalists subpoenaed for their notes by the court. The most famous case, controversially, of course, is that of Judith Miller of The New York Times, who served 85 days in jail for refusing to disclose an alleged CIA leak source about the evidence relating to weapons of mass destruction in Iraq.

Another case that may or may not be as infamous outside the journalism circuit, is that of Josh Wolf. During a protest in San Francisco in July 2005, Wolf videotaped violent and fiery anti-G8 protests and distributed some of his clips to Bay Area Indymedia and other news outlets. For refusing to turn over other clips of masked protestors, as requested by the courts, Wolf was sentenced in federal district court to go to jail. Though not a conventional journalist, he knew the informal heretofore-agreed-upon "rules" and he spent 226 days in jail for refusing to act as an agent of the state, the longest jail sentence served by a reporter for contempt for not turning in subpoenaed, unpublished data or sources. Despite Wolf’s status as a blogger, Society of Professional Journalists voted to make the largest donation in the history its Legal Defense Fund — about $30,000 — to help hire him a lawyer and get him out of jail.

With Wolf’s case and others, the dialogue in the journalism community heated to a boil the past couple years, particularly within the SPJ. With 10,000 members, SPJ, founded in 1909, is dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. SPJ debated at first, whether the activist independent Wolf was a journalist (yes, they said) and whether to support his cause (yes, eventually, and now as a cause célèbre).

The national past-president of SPJ, Clint Brewer, and the newly sworn-in president Dave Aeikens, are helping to try to push a bill to Congress called the Shield Law. The firm of Baker & Hostetler is assisting SPJ.

As the courts continue to traverse into journalist-subpoenaing grounds, journalism leaders backing Brewer’s and Aikens’ leadership say reporters still have a right to refuse to provide information from the newsgathering process, despite a legal climate that occasionally says otherwise. As per the voluntary SPJ Code of Ethics, ethical, professional journalists will go to jail for their sources, rather than reveal a source who would be punished for exposing hidden truths and injustices that they believe our society must know about.

Despite a supportive climate in the journalism field, part of the reason SPJ has been trying to convince lawmakers is that there is no definition of "journalist" in the drafted shield law proposal, said Brewer in his report to peers at the recent annual meeting.

Brewer introduced a Shield Law resolution at the annual National SPJ Convention this autumn in Atlanta, Ga. SPJ delegates from San Francisco to New York debated the language to try to again take to lawmakers in Washington, D.C. If anyone loves a good debate as much lawyers, journalists do. But by the end of the meeting, every single motion to define "journalist" failed. To attorneys and others involved in the courts it feels like much is still unresolved. If "anyone" is a journalist, then what’s to prevent others from abusing the reporter fact-gathering process and avoiding subpoenas?

It is a debate that will likely continue as the courts increasingly see the need for subpoenaing journalists, a former power reserved for highly unusual situations, if ever, to be wielded. Some states, including Colorado, have already adopted shield laws similar to the versions proposed on the national level.

In Denver, there are only eight seats for journalists on the floor of the Legislature. As bloggers, online independents, partisan organizations, citizen journalists and growing niche publications grab more of the news consumers’ eyeballs (the new word for readership or online clicks), who’s to say the historic news media have a right to all the seats at the capitol? Another question is, if adamantly partisan bloggers have easier access to legislators, will that affect the processes of lawmaking and news gathering for the greater good?

In addition to the metro dailies, and traditional broadcasters, would online media, such as the conservatively aligned Face the State and liberally oriented Colorado Independent have a seat? And what about Law Week of Colorado? How would it be determined? Is it just as fair to have some reporters sit in a room next door to the legislative floor, with live video?

For now, the debate in Colorado’s capitol over legislative press corps seats has been resolved. The Colorado Press Association, Society of Professional Journalists Colorado chapter and legislators agreed the Legislature would resume its practice of allowing access to the floor to journalists credentialed by the CPA, with the understanding that the CPA would review its credentials process. Essentially, in the eyes of the legislature, journalists and journalism organizations are defined by their membership in the optional, yet well-respected, Colorado Press Association. Those who have historically had seats, as well as rotations of newer organizations with growing audiences, will be able to have access to the floor of the Legislature, to report to you as best as they can who said what, and all the details surrounding legislative debates.


In addition to editing The Docket, Christine McManus connects curious reporters with expert attorneys as Director of Communications at the Colorado and Denver Bar Associations. She was a journalist in Colorado and New York from 1999-2007, and is a member of the board of the Colorado Pro Chapter of the Society of Professional Journalists.


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