That nasty “L” word

From the Winter 2005 issue of The News Media & The Law, page 1.

In the late 1990s, my career as a journalist had evolved into a new life as a media lawyer, and I was involved in an effort to amend Minnesota's shield law to lessen the chance that journalists would be subpoenaed to testify in state court proceedings.

We easily found a supportive state senator to sponsor the bill; the state's media lawyers worked long hours to draft a law we thought would do the job; and the state newspaper association put up $25,000 for professional lobbying.

There was one not-so-small problem, however. How could we convince the state's journalists that it was OK to ask the legislature for a law that would benefit, among others, the media?

Lawmakers who were interested in supporting the First Amendment rights of the media told us in no uncertain terms that the only way the measure would get through the Legislature would be if several prominent journalists testified at hearings and lobbied lawmakers. They wanted to be assured that this was a bill that journalists truly believed was important.

Let's put aside the fact that reporters are terrible lobbyists. They tend to point out arguments on both sides of a First Amendment issue just to be fair. They cringe at the idea of advocating anything. Many journalists believe they have an ethical obligation to stay out of politics at all costs.

Admirable as that belief may seem, it creates problems. In too many places across this country, there is no one else looking out for the First Amendment and the public's right to know.

No one complains when public meetings are closed. No one protests when jury selection is conducted in secret. No one objects when unidentified foreign nationals are jailed without charge and deported. The list is, unfortunately, endless.

There is no question that reporters who cover politics and government on a regular basis should not lobby for legislation that would benefit the media, or on issues they are likely to cover.

We solved that problem in Minnesota by asking a local television reporter who also was president of the state Society of Professional Journalists' chapter — and who seldom worked on stories at the Legislature — to testify in favor of the shield law amendments we had proposed. The amendments sailed through both houses of the Legislature. All it took was coordination, cooperation and a willingness to stand up for the First Amendment.

In recent weeks, members of Congress have introduced federal shield laws and, at press time, were poised to introduce amendments to the federal Freedom of Information Act. These proposals would protect the rights of reporters to keep their promises to confidential sources and make it more difficult for the federal government to shut down access to information.

The chief beneficiary of all these proposals would be the public. If journalists are allowed to keep their promises to confidential sources, whistleblowers will be more likely to come forth and provide information of great public value. Amendments to the FOI Act would make it easier for the media to provide information to the public.

But none of this is going to happen by magic. It will require hard work, cooperation between journalism groups and companies, and a willingness by journalists to stand up and declare their bias toward the First Amendment.