“Journalist Shield Laws: A Constitutional Conundrum” by Bill Olson, Herb Titus, and Robert Olson

Michael Harless Publications

Today, the American Thinker published our article entitled “Journalist Shield Laws: A Constitutional Conundrum.” The article was prepared at the request of the United States Justice Foundation in connection with a Symposium it is co-sponsoring on the First Amendment which is taking place later today at the National Press Club in Washington, D.C. At the Symposium, more than a dozen journalists will assemble, each of whom at one point in his career has chosen to spend time in jail rather than divulge the identify of a source.

To address the problem of government efforts to force the disclosure of sources, members of Congress over the years have introduced several variations of a federal “shield law” designed to protect persons considered to be “journalists.” However, there is a thorny Constitutional problem as to who qualifies as a “journalist.” In the case Branzburg v. Hayes, the Supreme Court refused to recognize a “reporters’ privilege,” for several reasons, including its concern that it could not grant special First Amendment press protections to a limited class of persons that was denied to everyone else.

Indeed, every Supreme Court case that had addressed the scope of the First Amendment’s protection of “the press” makes clear that it applies to everyone – not just members of the institutional media.

Our article stressed the flaw in a federal shield law which protects only the institutional media and then leaves it up to federal judges to decide on a case-by-case basis when free press principles will be applied and when they will be ignored.

Link to Article