4 out of 5 media law experts: ‘Yes’ on federal shield law

I’ve been reading the coverage/analysis of the proposed federal shield law, the Free Flow of Information Act, and it reminds me a little of global warming.

Remember for decades how journalists framed global warming, providing “fair and balanced” coverage by giving equal weight to scientists who said there’s a lot of evidence it is occurring, and to those few scientists who said it isn’t? That left citizens confused, shrugging their shoulders and feeling unmoved to change behavior.

We are doing it again with the shield law, as we’ve done before. And I’m concerned. Journalism – and citizens – will lose if members of Congress do not understand that the current legislation should be passed. No confusion about it.

Now, I appreciate healthy debate. It’s imperative we seek truth and report it. And clearly the law isn’t everything journalists would want – just like any legislation there is compromise involved. I acknowledge concerns raised by TechDirt, The Nation, and US News (my quotes included), and the point intimated by Eric Newton that criticism is to be welcomed. I get that.

But sometimes you just gotta go into that booth and pull the lever. Yes or no. That’s what Congress will have to do this fall. Should they vote yes or no? While I research and teach freedom of information as an academic, I know enough to know that there are other people who know far more than me.  So I sought out five people who are truly experts on shield laws. These people have devoted much of their lives to understanding the history, law, implications and nuances of reporter’s privilege. There are few people in the WORLD better versed and knowledgeable on the subject than these five.

I sent each an email and asked: Would the proposed federal shield law, if passed, overall, be a benefit to journalists? Yes or no?

  • RonNell Andersen Jones, law professor at Brigham Young University who has conducted extensive surveys of journalists about local and federal subpoenas: “Yes”
  • Anthony Fargo, media law professor at Indiana University who has published legal research regarding reporter’s privilege: “Yes”
  • Lucy Dalglish, journalism dean of the University of Maryland and former director of the Reporters Committee for Freedom of the Press who worked for years defending journalists against federal subpoenas: “Yes”
  • Clay Calvert, University of Florida media law professor, media law textbook author, and one of the most prolific, respected and cited legal scholars in the field: “Yes”
  • Jane Kirtley, longtime media law scholar at the University of Minnesota and former RCFP director: “No”

Of course, being academics, they couldn’t restrain themselves to a yes or no, and they expanded their answers. Jane Kirtley, for example, explained that the current bill would not provide sufficient protection in national security leak investigations, and that we are unlikely to get an opportunity to amend a problematic law any time in the foreseeable future. RonNell Andersen Jones mirrored a lot of thinking by writing, “It’s better than a kick in the teeth.” Lucy Dalglish pointed out its tangible benefits, some explained Sept. 29 by David Carr from The New York Times, and the success we’ve seen with shield laws at the state level.

So not to squelch debate, because we should still talk about the law and question it (that’s what journalists do!). But when it comes down to it, each member of Congress needs to make that single determination, yes or no.

So I offer to you, members of Congress, plain and simple without distraction, rhetoric or padding, that 4 out of 5 media law experts recommend passing the Free Flow of Information Act of 2013.

It took decades of debate for Americans to realize climate change is happening, is important, and needs immediate attention. Let’s not wait that long on the shield law. Pass it.

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