A good journalist shield, but is it worth it?

Massachusetts is currently chewing on a shield bill I actually like.

While debating Dan Kennedy by email, he noted that I fell into a trap by asking the question "who is a journalist" as opposed to "what is journalism."

"I think it makes much more sense to define 'journalism,'" he wrote. "Lisa Williams [of www.h2otown.info] is not a journalist, but she's producing journalism."

I wasn't quite sure what he meant, as I couldn't imagine the courts trying to define what, exactly, qualified as journalism. But the law currently proposed in Massachusetts comes closest. Dan has the text as a pdf.

(1) COVERED PERSON- The term `covered person' means a person
who--
(A) engages in the gathering of news or information; and
(B) has the intent, at the beginning of the process of gathering
news or information, to disseminate the news or information to the
public.
(2) NEWS OR INFORMATION- The term `news or information' means
written, oral, pictorial, photographic, or electronically recorded
information or communication concerning local, national, or worldwide
events, or other matters.
(3) NEWS MEDIA- The term `the news media' means--
(A) a newspaper;
(B) a magazine;
(C) a journal or other periodical;
(D) radio;
(E) television;
(F) any means of disseminating news or information gathered by
press associations, news agencies, or wire services (including
dissemination to the news media described in subparagraphs (A)
through (E)); or
(G) any printed, photographic, mechanical, or electronic means of
disseminating news or information to the public.

There are quite a few interesting definitions in this. Not the least of which is 1B. I like that it talks about whether you had the "intent" of disseminating news or information to the public. So basically, if you asked questions and collected data with the intent of telling others in some public way, then you have, in fact, practiced journalism. It doesn't matter if you are Brazenberg's "lonely pamphleteer" or David Boeri at Newcenter 5 (one of the most creative writers on local TV), your protection is the same.

Frankly, this may also protect PR people, but I don't want to get into that now.

Tuesday night at a roundtable on the subject at Northeastern University I heard some interesting things. But what worries me is the reason that journalists are supporting this law: fear. I heard over and over again panelists such as Shelley Murphy of the Boston Globe and Charlie Kravetz of NECN talk about the changing climate of distrust people have for the media and how it's become easier for judges and lawyers to come after reporters to ask for their information. This is entirely a defensive measure.

"The lack of regard of how the public holds journalists reflects in the courts," Kravetz noted. As the person who spearheaded the group that proposed the bill he also led the discussion.

As Bill Kirtz, the lone dissenter on the dias, pointed out many times, the first amendment should be enough to protect journalists. He went on to say that such a law, or lack thereof, doesn't affect the quality of journalism and that investigative reporting hasn't suffered since Branzenberg struck down the reporter's privalege. He concluded with a noncommital waving of the hand, saying "it's not going to hurt, so it's OK."

Even as I like how this law defines journalism, I'm still torn on its necessity. On the one hand the positive reporting that is only possible when a source is willing to talk with protection is important to the freedom of the nation. On the other hand, the shield often is in direct conflict with the Sixth Amendment, meaning that justice itself could suffer. Yes, there is the note from English jurist William Blackstone that states: "Better that ten guilty persons escape than that one innocent suffer," but while we say that, do we really believe it?

The liberal in me says "yes," but there's this nagging conservative that wants to see the guilty pay for their crimes.

I also worry about altered hindsight. We hear how the days of yore were better for journalism and how reporters were freer to report on stories that mattered. But were they? Or are we just remembering things wrong? I know that the papers were merciless on John Adams, those that were loyal to Thomas Jefferson anyway. Call them the Fox News of their day. Fair and balanced certainly didn't exist. And Ed Murrow still had to host "Person to Person" even as he reported on "See it Now." Which had the higher ratings? If memory serves it was the fluff show. Also, lest we forget, his most notable journalistic triumph came with known sources, not hidden ones.

My issue with anonymous sources remains transparency. People today demand more, not less. People want to know where journalists get their information and whether they can trust it. They are unwilling to simply take a reporter's word that it's true. I brought this idea up during the roundtable and I'll post separately on what was said.

The fact is, real reporters take their craft seriously. There are checks and balances and often they don't want to use anonymous sources, but find they are forced to rely on them. REAL journalists, are what stand between the government and the people, shining lights into dark corners to prevent officials from becoming drunk with power. They are the true check on the full system. People, however, are emerging as the full check on journalism itself.

Elizabeth Ritvo, a first amendment lawyer and partner at Brown Rudnick who also represents the Boston Herald, gave the following questions that she likes reporters to ask before relying on an anonymous source:

• Are there other sources?
• If someone disputes the facts, where are you?
• what is your experience with the source?
• What could you say that will show you were reliable, even if you didn't reveal the source?
• Where do you draw the line?

Murphy made the strongest case for the shield with one of the first things she said: "In 20 years of reporting it has never been more difficult than it is now [to get someone to be a source]." In other words, people are scared. Of those on the panel, her work reporting on organized crime makes her the most experienced in this area.

What I started seeing in this battle is journalism's fear of government. On the one hand are the judges and government officials hiding behind such legislation as the Patriot Act, screaming "yes, we have secrets, but tell us what you know, your secrecy is costing justice!" On the other hand are journalists screaming "yes, we have secrets, but tell us what you know, your secrecy is costing us freedom!" It's as if two gods are throwing thunderbolts, forgetting the people down below who must dodge the gods' wrath.

Yet, it is the people who will decide the end to this battle by one day choosing to believe in neither of them.

And perhaps that is the biggest loss of all.