Raising the bar

Posted: Aug 05, 2005 12:00 AM

This column won't be popular with most journalists. But in case they've missed it, poll after poll shows journalists aren't all that popular with the American people. So I'm sure the thick-skinned in media are used to taking these things in stride.

 There's a concerted movement at play that seeks to create a sort of protective shield for reporters who do not want to reveal their confidential sources to law enforcement or the courts.

 Language in the proposed laws to shield journalists may or may not constitute true immunity from revealing sources; their true extent remains to be seen. Regardless, the spirit of this legislation warrants serious scrutiny.

 This has come about because of the jailing or threatened jailing of reporters who have refused to reveal confidential sources to law enforcement investigators and grand juries looking into criminal matters. In each case, the reporter's information and its source were considered critical to the investigation.

 I admire professionals who stick to their guns in defending and upholding the ethics of their trade. For that matter, I admire and respect journalists as a whole. I know plenty of them, and most are talented, industrious and committed.

 However that may be, it seems the world of media -- somewhat self-righteous at its worst -- is in a bit of a philosophical pickle on this one.

 For starters, many of the supporters of the notion to protect anonymous sources are the same publishers, editors and broadcasters who helped make this the year of "open government" and "open records."

 When Congress or various state legislatures have moved to make certain government information unavailable to the public because they said it could trigger some dire circumstance, the journalism community has emphatically and immediately declared that the public has a "right to know," consequences be damned.

 Not really. Not unless I missed that part of the U.S. Constitution when I studied it in law school.

 My recollection is that the Bill of Rights confers on the media and everybody else the right to free speech. But I don't recall the so-called "fourth estate" actually having been referenced in the Constitution. Nor do I remember any amendment giving the public a blanket right to know each and every detail of their government's operation.

 Let's turn the tables on this extra-constitutional "right" that so many journalism students today accept as a given. They seem to believe reporters should be able to demand from government the disclosure to them of documents, verbal information and virtually any other discoverable material because the public has an inalienable right to see and hear all.

 But when a court, grand jury or law enforcement agency needs information that might be critical in the pursuit constitutionally sanctioned justice -- criminal or civil -- that version of the right to know must suddenly take a back seat to the journalists' need to protect confidential sources.

 After all, forcing journalists to disclose might have a "chilling effect" on someone's willingness to whisper stories into the ear of the man or woman who dreams of being the next Bob Woodward.

 I believe in open records. In compiling and holding records, the government is acting as an agent of the people, of which I am one. So I should have access to those records, at least under most circumstances.

 That's not the same as allowing me the newspaper columnist to tell a federal judge to stuff it because I have some special privilege.

 Yes, being compelled by law to reveal a source might make prospective new sources less likely to talk.

 But non-journalists' relationships, personal and professional, can also be damaged by their having to yield sensitive information to law enforcement or courts. And yet they face serious punishment if they don't fess up. That's life.

 Here's a proposal that might justify a shield for journalists. It comes from the legal field, which has attorney-client privilege.

 Why not require everyone that writes, broadcasts or publishes to attend three years of graduate school and then pass a communications equivalency to the bar exam?

 Society could then drop the laws that protect people from libel and slander because it would be holding journalists to a higher standard, as it does doctors and lawyers.

 I wonder how many in media would be willing to pay that price for their shield law.