Likelihood of Success

Amid the ongoing debate over a federal shield law (see, for example, editorials pro and con from Thursday’s USA Today), Slate scribe Jack Schafer has taken the opposite tack, arguing that journalists don’t need a shield and even that a shield would hurt the First Amendment. Today, Schafer offered the best argument against such a shield: poor choice in sources. Schafer writes:

Although I have great admiration for some journalists who have held themselves above the law and committed acts of civil disobedience that have earned them a ticket to jail, not all subpoenas are created equal. And not every source arrangement outside of “on the record” should require conscionable reporters to go directly to jail if slapped with a subpoena.

Some reporters invite subpoenas by practicing what I call “poor source hygiene,” granting confidentiality too liberally to sources who don’t deserve it.

Hear, hear. Schafer cites the recent Plame affair as well as the case of a USA Today writer who faces a fine because she refuses to give up the sources she used in reporting on the anthrax scare. In his devastating conclusion, Schafer chides the press for not undertaking enough self-criticism.

And, quite frankly, I would add a little more. Rathergate originated with an anonymous source. John McCain and the lobbyist? Again, mostly anonymous sources. I could go on, but there’s no need. At Slate, Schafer dubs such things “Anonymice” and has written extensively about their infestation.

The old rule for anonymous sources was first, to always try to verify an anonymous source’s statements through an on-the-record source and second, to dole out promises of anonymity and confidentiality sparingly. It is clear that that the press, particularly the national press, no longer adheres to this rule. And as the Plame affair and Rathergate illustrate, those confidential sources are only too happy to drop bombshells to compliant or sympathetic members of the press, who then publish allegations without undertaking even a hint of due diligence or exercising an iota of discretion.

Which brings us back to the question of a shield law. A federal shield law would essentially extend to members of the press a right not revealed by the public at large. If this right is to be extended, it is fair to ask, first, if the public interest would be served by extending that right and second, whether members of the press would exercise that right responsibly. Recent events illustrate the answer to both questions is a resounding “no.” Therefore, the press does not merit a legislative shield, and the federal government should not provide it.