Shield citizens, not journalists

A few weeks ago the Poynter Institute reported that French officials, hoping to stop a rash of beatings that were being taped and circulated,* had “passed a new law making it illegal for citizen journalists to record acts of violence.” The Poynter report added: “under the new French law, only accredited journalists would be permitted to make recordings in public places — a problematic distinction.”

Similar stories popped up in newspapers throughout the United States because there’s always a certain appetite for “those silly French” stories — the incredulity here being how French lawmakers could hope to enforce such a distinction in an age of web-enabled camera-phones.

Yet prominent American journalists argue that our Congress should make an equally problematic distinction by creating a federal shield law. I understand the intent: to allow journalists to protect confidential sources and thus enable them to serve as public watchdogs.

I think a shield law is as problematic as the French ban because it would differentiate what sort of people can legally make what sort of media depending on how they are credentialed. How does that square with the “Congress shall make no law” language of the First Amendment?

*see “happy slapping

If we want better government, the fastest way to expose waste, fraud and abuse would be to strengthen protections for whistle blowers. Make it easier for conscientious bureaucrats to step forward. Here there is good news. Congress is moving to strengthen the protections for people who risk their reputations and careers to reveal wrongdoing.

If we want better journalism I would argue that a federal shield law isn’t the way. Why shield journalists, rather than citizens, at just that point in history at which technology is blurring the line between the citizen and the journalist?

There could be stories lost if journalists could be routinely subpoenaed and be forced to give up anonymous sources. Anonymity has its uses and it certainly had its moment in history. I’m thinking back to when Deep Throat helped the Washington Post unravel the Watergate scandal.

But fresher in my mind is how prominent news outlets in the United States beat the drum for the war in Iraq based on reports from “officials speaking on the condition of anonymity.”

Does that phrase ring a bell? It should. It’s what the reporters wrote when they passed on what we now know to be cooked up intelligence proofs that Saddam Hussein had weapons of mass destruction.

I once ran a Lexis search of New York Times articles looking for stories published from 1982 through 2003 that contained the following sequence: Iraq and (officials w/8 of anonymity). I tracked the frequency with which this phraseology appeared over a series of U.S.-Iraqi crises involving four American presidents (see below). Sure enough, whenever tensions rose, anonymous officials increased the frequency of their whispers, culminating in a record-setting 118 occurrences in 2003 — the year the U.S. invaded Iraq.

I found the first occurrence of this search string in a May 31, 1982 column by William Safire that makes only a tangential reference to Iraq but includes a delicious irony.

In writing about some long forgotten spat between the United States and Israel, Safire mentioned a “low blow” delivered by “a senior Administration official from the ambush of anonymity.” Ambush! The word gets to the heart of what is wrong with anonymous reports — readers can’t judge whether or not to believe the source.

Professional journalists just let government officials misuse anonymity to mislead the nation into war. They should do some soul searching on the subject of anonymity. Meanwhile, Congress should ask whether it wants to follow the French in drawing some artificial boundary between the First Amendment rights of professionals and citizens.


(Here are my results for the Lexis search; year, occurrences. 2003, 118; 2002, 18; 2001, 8; 2000, 3; 1999, 38; 1998, 58;1997, 21; 1996, 20; 1995, 10; 1994, 10; 1993, 32; 1992, 36; 1991, 67; 1990, 46; 1989, 0; 1988, 0; 1987, 5; 1986, 1; 1985, 0; 1984, 0; 1983, 0; 1982, 1.)