Journalists receive protection from disclosing confidential source information through individual state’s shield law because a federal one does not exist. For me, a good shield law should protect an author who repeatedly writes newsworthy content, which they accumulate through accepted journalistic processes. In spite of my opinion, the state shield laws are alike and different in the way they define a journalist based on the type of publication and information, which the law protects.
One way a state may define the protection shield laws extend to is by the format one publishes newsworthy content in. Some state’s shield laws protect any author who may “gather, compile, and publish news through a general-circulation publication comparable to a newspaper,” like a blog operator (Trager 367). Others protect only those who “report news or regularly disseminate information," such as professional writers for news mediums like print, radio, or television (Trager 367). For instance, book authors, magazine writers, freelance and internet writers may be excluded from being able to protect their confidential sources in certain states. This is because they do not usually publish newsworthy content in traditional news formats even if they gathered the information using similar techniques.
In March 2019, Sam Toll, founder of The Storey Teller blog wrote an article about Storey County Commissioner and brothel owner, Lance Gilman. Gilman sued for defamation, and a Nevada District Court Judge ordered Toll to reveal his sources for the article. Although the “judge concluded Toll is a reporter,” Toll failed to argue the medium he published his article in met the definition of periodical according to Nevada’s shield law (Mitchell). Although some state’s shield laws define journalists depending on the medium one publishes in, another way states define a journalist is if they follow ethical newsgathering practices.
Because journalists have the power to influence others, it is their responsibility to report true and factual news. Some state’s shield laws do not protect those who do not abide by customary journalistic practices such as “checking facts, including different views or promising sources confidentiality” (Trager 367). For example, in 2011, the New Jersey Supreme Court ruled, “People who post to online message boards don’t have the same protections as mainstream journalists when it comes to keeping their sources secret” (DeFalco). These posters may not employ not an objective viewpoint in their comment, fact checks before publication, or write with only the intention to satisfy the public’s right to know. Since message boards are discussion forums, which are unlike traditional news mediums, the Court disqualifies those who post on them as journalists. Not only do some shield laws define who they protect, but also what they protect.
Rather than focus on the occupation of the writer, I believe a good shield law should protect one who frequently posts newsworthy content, which they collected using ethical information gathering means. Therefore the law would extend to employees of print, radio, and television, as well as internet writers and student news reporters. With the shift in the way, the public receives news, broadening the definition of a “journalist” must expand with the rise of emerging news mediums. By doing so, it will allow these previously excluded writers to practice writing with privileges comparable to a professional setting they hope to enter.
For instance, a judge reversed a decision to “not protect bloggers on a website containing technology news and commentary,” when the website “disclosed that it also included reviews and undertook fact-checking” (Trager 367). So long as the author can prove they followed ethical newsgathering techniques to obtain newsworthy content, the shield law should protect them regardless of the type of medium they publish.
These conditions would continue to exclude book and magazine authors and those who post on message boards because writing about newsworthy subjects may not be their main focus. This is in contrast to an author of a blog, which “can be considered a news medium [if it] contributes to information flow by reporting recent events” (Trager 367). While these print authors and online message board commenters may use ethical practices to occasionally report newsworthy content, I think in addition to the process, the shield law should protect those who have a history of and consistently publishes news stories.
Due to the absence of a federal shield law, the states enacted their own to protect journalists. Although each state has its own set of shield laws, there are some similar aspects among them. However, it becomes more difficult to grant people the right to refuse to reveal their confidential sources when technology allows more people to report online or independent from news outlets.
DeFalco, Beth. “NJ court: No shield law for message board posters.” The Seattle Times, https://www.seattletimes.com/seattle-news/nj-court-no-shield-law-for-message-board-posters/ Accessed 10 Nov. 2019
Mitchell, Thomas. “Nevada Press Shield Law Protects Bloggers.” The ElyTimes, https://elynews.com/2019/03/22/nevada-press-shield-law-protects-bloggers/ Accessed 10 Nov. 2019