A flaw in the proposed federal shield law for journalism?

Gerry Storch is editor/administrator of www.ourblook.com, a media analysis/public issues discussion site that bridges the gap between a blog and a book. He has been a feature writer with the Detroit News and Miami Herald, Accent section editor and newsroom investigative team leader with the News, and sports editor and business editor for Gannett News Service. He holds a B.A. in political science and M.A. in journalism, both from the University of Michigan.

The media shield bill that frequently seems poised to whisk through Congress, but has incurred several discomfiting delays, is a bad idea unless it gets one big change.

And isn’t it odd that the shield bill is revving up with its sprint-to-the-finish momentum, and the mainstream media would be gaining a significant new power, just when …

Just when these same media are declining precipitously in readership and finances, are at an all-time low in public believability as measured by the recent Pew research report, and have relatively few reporters left investigative or otherwise who would avail themselves of such a law.

Let’s call it for what it is, a power grab. As many states already have their own shield law, this is an attempt to cram one down the throats of those who have declined to grant the media such a privilege, or have done so in tepid fashion. If it passes as is, the press would have virtually unlimited power in reporting.

Back in the ’80s, I would have been a kneejerk and enthusiastic supporter of this bill. I was fortunate to be the leader of an investigative team at the Detroit News when it was a big, robust paper … the nation’s ninth largest daily, and the seventh largest Sunday edition. I oversaw half a dozen reporters and could tap more if needed. So from the stories we did, I think I’m well enough aware of the need for confidential sources and to protect them. Often, there’s no other way to expose wrongdoing.

That was then, now is now. Now I’ve been out of the journalism biz for eight years and have a hopefully broader view.

The big change I’d like to see is this: if the story goes to trial, the judge should have the discretion to disallow the confidentiality protection of the sources if the reporter has made any significant errors or if the sources’ information is wrong or unfair.

If the reporter has screwed up or been dishonest or been suckered, why should he/she be protected?

Without this change, the law is a bad idea for the public because the rights of the subjects of the stories and possibly others affected are totally ignored. And it might be a bad idea for the press itself because one can easily foresee it backfiring during a libel trial that centers on wrong and harmful information.

Imagine the press attorney smirkingly telling the jury that ha-ha, no we’re not going to tell you where this bad information came from because we don’t have to, and no you can’t hear from these sources themselves to make sure the reporters didn’t goof in claiming what was confided to them. Juries don’t like parties in a case with their noses in the air, or sensing that the deck has been stacked, and the reporter defendants might get an unpleasant surprise when they hear the verdict.

The glitches in the shield law’s consideration in recent years have centered on national security provisions and whether bloggers et al would be included for eligibility in this shielding. The various sides all had worthy considerations, and these aspects have been amply debated.

What’s being rushed through with no attention is the underlying basis of the bill … that reporters are perfect little angels who would never ever abuse the use of confidential sources, and that these sources are always totally honest and aboveboard with no hidden agenda.

Anyone who wishes to openly make that argument, be my guest.

The efficacy of the bill depends upon the public trusting reporters, yet the public doesn’t trust reporters.

More sophisticatedly, the argument is made that only the most experienced, the most talented, the most determined and the most ethical reporters would be doing the investigative stories that would be protected, and therefore the law is needed to safeguard these paragons.

So how do you explain what happened at the Los Angeles Times?

In 2008, the Times was forced to retract a story, and reporter Chuck Philips publicly apologized, after the investigative website Smoking Gun exposed the fact that a jailbird confidential source he had relied on had given him forged documents in the case of an attack on rap star Tupac Shakur in which music executive Sean “Diddy” Combs was implicated.

The story was flat-out wrong and big star Philips … why, he had won a Pulitzer Prize … had been duped like the rawest rookie.

Yet if Smoking Gun hadn’t been around to help, and if the federal shield bill had been in effect, even someone as powerful as Combs would have been helpless to win redress and clear his name, since he undoubtedly would have been classified as a public figure. He and any other innocent person in a similar situation would have virtually no recourse as the victim of a false, harmful story based on false, harmful information from a shielded confidential source.

In two editorials since then that … surprise, surprise … soundly endorsed the shield bill, the Times somehow “forgot” to mention this embarrassing but relevant incident. If the paper cannot be trusted in its explications concerning the bill, how can it be trusted in its operations with unnamed sources that same bill would protect?

Here are three other real-life media situations that if you extrapolate from them, show why the shield law as presently constituted isn’t good.

MICHIGAN FOOTBALL. Last fall, the Detroit Free Press ran a sports expose in which six unidentified current and former University of Michigan football players said they were forced to practice far more than NCAA rules allow.

Anonymous sources should be used only as a last resort … only when there is a significant story being told and there’s no other way to get the information.

To me, in this case it was justified. If the players had gone on the record, they would have been ostracized by their teammates, given verbal abuse by rabid fans for “hurting the team,” and had their lives made a living hell by the vengeful coaches. As a U of M grad, I thought it was an excellent story showing how a once high-class football program is being dragged down into the dirt by a new low-class coaching regime.

So that part’s OK. But suppose … not just in this story, but say a similar story at any paper … that the coach could come up with practice time logs showing he had done nothing wrong, or that the players had some sort of ulterior motive for complaining that wasn’t reported, or the reporter had misunderstood something … the shield law would unfairly protect the slacker reporter and punish the innocent coach.

NYT GETS MCCAIN. In what can only be termed a disgrace and abuse of confidential sources, the New York Times in February 2008 came out with a widely heralded story hinting that the married Sen. John McCain embarked on a romantic affair back in 1999 with lobbyist Vicki Iseman, 31 years younger.

Iseman responded by filing a $27 million libel lawsuit. It was subsequently settled out of court, and the Times … not saying whether it had paid her anything … crowed that it had won a big victory for freedom of the press.

But if the case had been pursued … the paper did not flatly come out and say the two had an affair. There was no straight factual substantiation whatsoever. Indeed, the paper printed denials by both parties … and then rattled on as if the denials didn’t matter, using innuendoes from anonymous sources. It is telling that the Times, in its flimsy response to the suit, said it had been reporting on the “perception” of questionable activity by McCain … i.e., not on any activity itself but the “perception” of it.

Ms. Iseman claimed the story led to “a corresponding deterioration of her interior mental, emotional and physical health.” If she had doctor bills to prove it or any other specific evidence of damage, and the Times couldn’t or wouldn’t produce the sources to justify the story, her lawyers would have had a field day.
Since the Times’ own ombudsman, Clark Hoyt, seemed dismayed by the nonexistent reporting … noting in his column that “although it raised one of the most toxic subjects in politics — sex — it offered readers no proof that McCain and (the woman) had a romance” … Iseman’s lawyers would have enjoyed asking him on the stand to tell the jury why it was justified for the sources to be shielded, and see what he was forced to say.

IT WAS ONLY A MURDER. The Alton, Ill., Telegraph got into a hot spot in 2008 when it received a subpoena from a grand jury demanding to know the identities of five anonymous responders on its website concerning a murder investigation. The state’s attorney believed two of the bloggers could help solve the murder case because from their comments, they seemed to know something about who did it.

The Telegraph, without uttering even a shred of sympathy for the murder victim’s family, or at least any sympathy that was visible in a standard Google search, said the bloggers were “sources” akin to someone making a telephone tip in the old days, and that such sources were protected by the state’s shield law, so sorry, we won’t help you. The paper may have neglected to use the phrase “chilling effect” in its brief; maybe in Alton, they don’t know it’s virtually mandatory that “chilling effect” be posited by the press as a dire warning if anyone dares challenge it legally.

Since then, a judge ruled the paper had to identify the two relevant bloggers but not the other three.

If a family member or good friend of yours was murdered, and an anonymous source in the media knew who did it, how would you feel if the paper not only didn’t care but also refused to let law enforcement interview this source to bring justice?

That’s power of the press, all right, to possibly keep a murderer from being prosecuted. Too much power for my taste.

P.S. Please, please don’t bother bringing up the supposed plight of the Northwestern University journalism students as a justification for a shield law.

Let’s see now, these are the students who gave a guy money some of which he used to buy cocaine after he obligingly furnished them the murder confession they wanted to hear in their quest to free a convicted defendant of that crime so they could get good grades, only afterward the gentleman inconveniently recanted his confession and the district attorney’s office has started investigating the students’ investigation, which is wrong wrong wrong because while the students can investigate anybody they want, nobody can investigate them because they’re so goshdarn special and if anyone tries, it’s wrong wrong wrong because it will have a chilling effect on reporters throughout the universe.

This isn’t a reason to have a shield law. It’s a reason to fix the one that’s being blasted through with too little discussion, too little attention.

About Gerry Storch

I was sports editor and business editor of Gannett News Service in the USA Today headquarters in McLean, Va., when I and a number of colleagues took buyouts at the end of 2001. Before that, I was a feature writer at the Detroit News and Miami Herald, and Accent section editor and newsroom investigative team leader at the News. I hold a B.A. in political science and M.A. in journalism, both from the University of Michigan.


  1. Great point — particularly about the murder case. Too often we hide behind our First Amendment rights and ignore the need to act as a responsible member of the community.

    BTW, I’ve started a blog dedicated to following unnamed sourcing: http://www.anonymoussources.org. It’s the subject of my doctoral dissertation as well.

  2. I agree, the law seems to unfairly give the reporter the upperhand if he makes a mistake, whether it is deliberate or not. If the media can go out and expose all these people for their wrong doings, why should the government at all protect them for theirs. This is a free and equal country so why are we getting to a period in it where that is no longer true, maybe the government should really sit back and think about what they are doing

  3. To me, the most troubling aspect of the federal media shield law is the notion of the federal government defining who is or isn’t a journalist.

    BTW, why do you refer to commenters on the Illinois website as “bloggers?”