An argument against the Federal Shield Law

If it ain't broke, don't fix it. Now there's some practical advice. It may seem crazy, but that's the sentiment from an unexpected ally in the battle against a Federal Shield Law. Patrick Fitzgerald—yes, he of the same of U.S. District Attorney's office who paraded scores of veteran journalists on the witness stand in the Scooter Libby trial—has an op-ed in the Washington Post about the unintended perils of such legislation. (H/T to Jill for the link.)

His basic premise is that we need to question first whether or not the system of conducting federal investigations, covering and protecting whistleblowers, reporting on such investigations and fighting subpoenas is in need of fixing. His belief? As flawed as the system may appear, it actually works.

A threshold question lawmakers should ask is whether reporters will obey the law if it is enacted. They should ask because the Reporters Committee for Freedom of the Press calls for a shield law while urging journalists to defy the law when a court upholds a subpoena for source information.

He cites a number of impediments created by the bill, including the handcuffing of national security investigations, the delay (measured in years) of such investigations, but most important, he cites the perils of defining journalism. Ding! Ding! Ding! Will someone please wake up and drink of this brew! It would be swell if some of my fellow journalists would start singing this tune! At the very least, he says, the bill defines journalism so broadly that is also includes criminal organizations who disseminate information. So while it may unintentionally penalize those who function as legitimate independent journalists, it may also reward a slew of people on the other side of the law. The Washington Post editorial board calls this extension of coverage "far-fetched," but seriously...do we really want to test that?

The bill does not even purport to exclude domestic terrorists, gangs or pedophiles. No senator or legitimate journalist wants to extend protection to terrorists or other criminals, but such is the vice of a law defining journalism.

Can I get an Amen?!