A shield law that wouldn’t have protected Judith Miller or Josh Wolf 

New York Times reporter Judith Miller spent nearly three months in jail in 2005 before she finally revealed her anonymous source to a federal grand jury investigating the Valerie Plame affair.

Political activist and freelancer journalist Josh Wolf spent 226 days in prison for refusing to give federal prosecutors unaired video of a 2006 demonstration where a San Francisco police officer was hit on the head and a police car was vandalized.The Miller and Wolf cases are cited as two examples of the need for a federal shield law. Congress has proposed to solve the problem by passing a bill called The Free Flow of Information Act of 2007. But to call this a shield law would be wishful thinking. It would not have protected Miller. It exempts national security investigations. Nor would it have kept Wolf out of the clink. He could not have met the definition of a journalist as one who works at the “regular gathering” of news.So we have a shield law that wouldn’t have shielded two of the poster children for its passage. But it gets worse.

The law requires disclosure of an anonymous source “to identify a person who has disclosed a trade secret.” Some shield law! It has less legal clout that the formula for Coke.

In fact nearly every word in this act spells out the circumstances in which journalists can be subpoenaed. If truth-in-labeling applied to legislation, Congress would have had to title this turkey the How to Subpoena a Journalist Act. It turns out that the legislative process provide its own reality check. Every law must boil its purpose down to a sentence.  The stated purpose of this act is:

“To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”

Those old enough to remember Vietnam will recognize such logic. I am not surprised that lawmakers might consider it their duty to destroy journalism in order to save it. I am, however, astonished that so many journalists seem seduced into thinking of this as a shield law. I can only assume they’ve never read it.

Fortunately once they do read the Free Flow of Information Act, they realize its deficiencies. In a recent blog posting, Poynter Institute commentator Amy Gahran lamented the exclusion of bloggers and citizen journalists:

“Journalism is a practice . . . it’s about committing acts of journalism, not about getting a degree, being employed, or even getting paid. I think a federal shield law with such exclusive language would only serve to diminish the practice and independence of journalism, especially among people who are sticking their necks out entirely on their own to do it . . . I never thought I’d say this, but if this bill does make it to Bush’s desk with that particular language intact, I hope he does veto it.”