Editorial: Demand the shield law NOW

The two reporters who exposed the fraud that is Barry Bonds were heralded by President Bush as having performed a “public service.” And in America, when journalists perform a public service and do it better than public servants, we face jail time. The freedom of the press is under attack, and we need a shield law right now. Sure, it’s not exactly controversial for a journalist to write an editorial supporting a shield law. But hear me out.

A judge is demanding reporters Mark Fainaru-Wada and Lance Williams reveal their sources. Fainaru-Wada and Williams exposed the dirty little secret of baseball – its rampant, shameless tacic endorsement of steroid use. Together, the San Francisco Chronicle reporters wrote “Game of Shadows,” which went on to become a best-seller.

In today’s Boston Globe, sports writer Gordon Edes (disclosure: he is engaged to a dear friend of mine) puts it very well:

“Many of us who make our living in sports journalism look upon Fainaru-Wada and Williams with great admiration for uncovering what appears to be rampant steroid use in baseball. Because there have been hundreds of deaths associated with steroid use in young athletes, the awareness brought forth by Fainaru-Wada and Williams has likely saved lives.

“And their reward? Prison time. Meanwhile, the man accused, Bonds, moves closer to breaking the most sacred record in baseball.”

As is the case with most of the Constitution, the First Amendment could not be clearer. And while Congress is not making a law abridging the freedom of speech or the press, a de facto law is in place and if Congress does not pass the federal shield bill now before them that’s as good as endorsing the legal status quo. Case law, after all, is nearly as good as legislation. Sometimes better.

This is America. We don’t jail journalists for writing unpopular things. We don’t even jail them for committing fraud. Stephen Glass, Janet Robinson, Jayson Blair – these are journalists who did terrible damage to our profession and to the public that trusted them. We don’t jail them. Instead, we choose to jail the best of the best – the journalists who do a better job of investigating scandal and crime than the people paid to do so can seem to accomplish.

Some disclosure now.

In 1999, I was subpoenaed after producing a report involving charges of rape against a New England Patriots player. My report strongly indicated the person making the charges was lying. Of course, I got a subpoena. It was through the work of a skillful lawyer that I managed to escape a court appearance – or , perhaps, the pokey.

And I now work with Charles Kravetz, VP of News at NECN, who is leading the effort for a shield law in Massachusetts. Charlie and I have had many discussions on bloggers and what constitutes “a journalist.” To me, journalism lies in the act and not the title.

Back to the editorial.

President Bush, who hailed the BALCO scandal reporters, does not support a federal shield law. And why would he? Reporters have been nothing but a pain in the ass for the president. (Yet another disclosure: I am a Libertarian who initially supported President Bush.) Journalists have finally come to their sense and started questioning the party line. We did a lousy job in the Iraq War’s early months. We fell for it. Now we’re at least looking into the government’s claims. Sometimes the claims are correct. Sometimes they’re bull. That’s what we do.

This is not a matter of liberal vs. conservative. The press went after President Clinton every day of his presidency. Ditto Jimmy Carter. The job of a good press is to question power. That doesn’t mean to be negative. It means simply questioning, investigating and reporting.

In the Valerie Plame case (and look who turned out to be at blame for that), who faced jail time? The person who outed a CIA agent? No. The government officials who stalled and stalled the investigation? No. The reporters – who didn’t even write about the story. They simply investigated it.

Once people know they can’t trust the investigators, (and they’re already nearly there) why would they help? I’m certainly not going to contribute to a report if I think the reporter will have to turn me in.

Doctors have immunity. Lawyers have immunity. They have long been recognized as contributing to the greater good by their access to privileged information. It’s long overdue to give journalists that same immunity. Otherwise, the Fourth Estate might as well be the a backyard shed.