Constitutional rights are a funny thing- not in the “ha ha” sense, but in the sense of strange. They are in the Constitution to prevent the government from infringing on the natural rights of citizens that make democracy possible.
Paradoxically, however, totally free, unrestrained exercise of these rights can lead to the downfall of democracy as easily as unrestrained restriction on the same rights.
Take, for example, the controversy about journalists protecting anonymous sources, even when facing a subpoena. Supporters of so-called “shield laws” say that they will protect the free speech of these sources. What they seem to forget, however, is that our rights also come with the responsibility to use them wisely and to face up to the consequences of misusing them.
If one of these anonymous sources were to, say, tell a journalist about the scandalous extra-marital affair of a local politician. Now, this might be relevant information to the upcoming election, but what if it turns out not to be true, or that this “source” used extra-legal methods to obtain his information? Should his free speech be protected then?
Or what if the source was an official who leaked top-secret information on troop movements to the media? Would that be an appropriate use of free speech?
True, there are instances where breaking the rules for a higher good might be appropriate, but if one is willing to do that, he should also be willing to face the consequences.
The problem with shield laws is that the distinction between a justified breach of trust (say, involving corrupt government officials) and an unjustified one (such as one that involves a false smear attack) is often blurred and/or hard (if not impossible) to prove.
The "Shield" of Irresponsibility
By Politae - Posted on August 4th, 2008
Tagged: Constitutional rights
• Freedom of speech
• Journalism
• shield laws
• Effective government
• Personal freedom



Currently, there is no federal "shield law," and it is unlikely that one will be enacted. The Supreme Court ruled in Branzburg v. Hayes (1972) that reporters do not have a First Amendment Right to withold testimony (including the identity of sources) from a Grand Jury. Granted, this doesn't prevent such a law from being passed, and approximately 30 States have some sort of "shield law," but the ultimate fate of such a contest has already been decided by the High Court, and should the need ever arise to pursue such a course the precedent of Branzburg would almost certainly end in the reporter being forced to reveal his or her source, or to face the consequences otherwise.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
Yes, I know that there is no federal shield law. But the Senate narrowly avoided passing one recently, July 30 in fact, and the House previously passed the bill overwhelmingly. So the possibility is not nearly so small as you claim. (check out http://www.spj.org/shieldlaw.asp or http://www.usnews.com/articles/news/national/2008/07/29/judith-miller-th...) And the Supreme Court is not a static institution- they could very well overturn the Branzburg decision, as they have done with other issues in the past, such as slavery and civil rights.
"A government big enough to give you everything you want is big enough to take everything you have." - Barry Goldwater
"... the ostensible means [diversity] of acheiving a desired end [equality] had become the end itself." - Clarence Thomas
...its own decisions, it is still a very rare occurrence. The Senate has been killing bills of this sort regularly for years. And considering that the Court is MUCH more conservative now than it has been in decades, I find it unlikely that they will just up and overturn Branzburg. This is even more unlikely when you consider that such a decision would actually undermine the authority of the Court to compel testimony...after all, politicos rarely make decisions that render them LESS powerful.
Let me be clear...I think these "shield laws" are a really bad idea. I just don't think that we're in any real danger of seeing one passed that would actually survive a legal challenge in the federal courts.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
True, the Supreme Court is more conservative today than it was in 1972. However, it is still nearly evenly split between conservatives and liberals (check out http://www.latimes.com/news/nationworld/politics/scotus/la-na-scotus29-2...), and if this hypothetical case were brought to the Supreme Court, it would not be a sure thing that they would strike down a federal shield law, especially if it included exceptions for times when there would be no other way to get information on a violation of the law (which, despite how straightforward it sounds, could be interpreted several ways).
And it doesn't matter how regularly the Senate has been killing shield law bills in the past, the last one barely got shot down. The next one to be brought up could very well pass, especially if the Democrats gain more seats in the election.
(Oh, and a politico is a politician, which Supreme Court justices are not.)
"A government big enough to give you everything you want is big enough to take everything you have." - Barry Goldwater
"... the ostensible means [diversity] of acheiving a desired end [equality] had become the end itself." - Clarence Thomas
That would be libel if the journalist wrote it down, and slander if he/she spoke it. The 'victim' then can sue the journalist, and the journalist would be wise to turn in their sources at that point. That 'free speech' isn't protected, just like yelling 'Fire!' in a crowded theater (when there is not, in fact, a fire) also is not protected. There are limits to freedom of speech, precisely so that it doesn't run amok.
~C
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Yes, that is exactly the point! There are limits on our freedoms, including freedom of speech, but a federal shield law would destroy the balance and get rid of many of those limits for journalists.
"A government big enough to give you everything you want is big enough to take everything you have." - Barry Goldwater
"... the ostensible means [diversity] of acheiving a desired end [equality] had become the end itself." - Clarence Thomas