Shielded in San Francisco
The problem with shield laws is that they excuse an entire profession, journalism, from ethical obligations that govern the rest of us. When most citizens learn about wrongdoing, we have an obligation to report it to authorities, or in some cases, stop it ourselves. If we have knowledge that can lead authorities to the apprehension and punishment of wrongdoers, the law can compel us to reveal it. But journalists sometimes get important information from lawbreakers and others who are violating promises, contracts, rules or oaths, so shield laws purport to protect the news pipeline by making journalists exempt from this basic obligation of citizenship. “Compelling a journalist to reveal a source” is, in many cases, really compelling a journalist to expose a crook, a liar, a cheat, a traitor, or an unethical professional who richly deserves to be exposed and punished. Because shield laws make it virtually impossible (there are a few narrow exceptions) for the courts to compel journalists, the crooks and traitors benefit too. They can and do use journalists as a way to accomplish illegal or unethical ends without risk to themselves.
Advocates of shield laws claim this is an unfortunate side-effect of the laws, but well worth the main results, which is that reporters can report important stories without fear of legal penalties, and that sources feel free to trust journalists not to reveal their identity, even if they are serial killers or Osama Bin Laden. Maybe. I would feel better about the argument if I detected extraordinary ethical commitment and sensitivity on the part of reporters and journalists generally. I don’t see it. I see journalists who are supposed to be neutral and fair observers showing naked bias, in direct violation of their supposed codes of conduct. I see entrenched carelessness and incompetence, and despite this, arrogance. To understate the situation, journalists today do not display any special trustworthiness. I have a difficult time justifying allowing their judgement about what “the public has a right to know”—the profession’s self-serving and cynical mantra—trump society’s legitimate interest in deterring criminals, officials who want to leak state secrets, corporate officials who want to violate valid contracts, and lawyers who choose to betray the clients whose confidences they have sworn to protect.
I think about all of this as I consider the current case reported in the San Francisco Chronicle. A college journalism student who witnessed a murder last month in San Francisco is invoking the California shield law as he refuses to cooperate with police.
California’s shield law allows journalists to protect the confidentiality of sources or of unpublished information obtained during reporting. It covers a "publisher, editor, reporter or other person connected with or employed by a newspaper, magazine or other periodical publication, or by a press association or wire service," and a "radio or television news reporter or other person connected with or employed by a radio or television station." All notes, photos and recordings and eyewitness observations in public places are protected under the law, which blocks journalists from being found in contempt for defying a subpoena.
The 22-year-old San Francisco State University student was present when Norris Bennett, the subject of a photo essay he was preparing for class, was shot on the street. The student took photos that police believe could help them find the killer. He refuses to give over either his eye-witness report or the photos, arguing that he was on the scene as part of his school project chronicling life in the community, and that his witness account and the photos he took are covered by the shield law.
The Chronicle says the case is headed for a landmark legal showdown that may define who is a journalist and how far protections for the profession extend. I don’t really care. The student, a dubious journalist at best, is using the shield law to duck his ethical obligations. It is nothing more noble than that. He is not protecting a “source”…his source was the dead man. He is protecting a killer. That’s not what the law intended.
Karl Olson, an attorney in San Francisco who often represents media organizations, was quoted by the paper as saying, "This may be not the strongest case of invocation of the shield law." No kidding, Karl! It is, in fact, the case of a reluctant witness relying on the special status such laws bestow on journalists, while vividly demonstrating why they may not be worthy of special consideration.
People who know the student say he was horrified to see someone he knew slain right before his eyes, and is afraid to testify. Anyone can understand that. I feel sorry for him, just as I would feel sorry for myself if I was facing his plight. But I would have no choice, if I wanted to do the right thing. Fear of reprisals, legitimate though they may be, does not relieve any of us of the duty to come forward when we witness a crime. The shield laws are not “let’s make sure that reporters never have to suck it up and do something scary that everyone else is obligated to do” laws. They are not, or shouldn’t be, “reporters get to take a pass whenever obeying the law is difficult” laws. The student, whether a court finds that he is a journalist or not, is trying to distort a law intended to protect our free press for the entirely self-serving purpose of avoiding a difficult ethical obligation. He is claiming that the shield laws say that his cooperating with the police would be wrong. That is nonsense.
This is what happens when we exempt a whole profession from societal obligations.