Journalism is as highly perplexing career that involves rubbing of shoulders with the law in both positive and negative ways. This has brought about confusion over its relation to courts and witness protection. Journalists have a responsibility to protect their sources when it is deemed necessary. However, the law also works to ensure that justice is served by calling on authenticity of information given by the journalists.
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This is sometimes very difficult as it compels journalists to provide their sources. However, as stated in the first amendment, freedom of press was authenticated. Nonetheless, each state in the United States varies in their degree of protection for media against subpoenas. This depends on the kind of information gathered or whether it is published or not.
In this regard, a number of issues have come up on the reasons for journalists’ use of confidential sources, how the law hinders their work as well as definition of a journalist in the context of law. This paper will review Jason Shepard’s privileging the press with regards to witness protection. It will also seek to address issues concerning definition of journalists as well as how the law hinders their work (Shepard 10).
Why Journalist use confidential sources and how they frame source protection in first amendment term
Jason’s book on privileging the press explores protection of confidential sources against subpoenas, which have increased in the recent past. Journalists gather information from a range of witnesses who may or may not want to be identified. Moreover, once a journalist has assured his/her source of confidentiality, it becomes a breach of ethics to end up revealing them.
This has caused great concerns as most of these sources sit on crucial and sensitive information that requires action. On the other hand, revealing sources may hinder future newsgathering of information from the same or other potential sources. In addition, this may endanger some sources’ lives or jobs as well as interest on sensitive issues.
For this reasons, it is always compelling that journalists meet their end of the bargain to protect confidential sources. Several issues have come up on the reasons why journalists use confidential sources. It is important to note that information from confidential sources is usually important to the government, society or the world at large. Moreover, some of the news gathered may be sensitive to the security of a State or its people.
In this regard, the book explores professional duty of journalists to protect their sources. Jason strongly emphasizes that journalists have the responsibility of protecting their sources as this helps in strengthening confidence on their work. Moreover, it helps to instill integrity on their line of work. In essence, journalists need confidential sources because of the risks involved with regard to the news gathered.
In addition, journalists need confidential sources because most of the information gathered is always interesting, disturbing or opinions whose sources never want to be named. These may range from information that is sensitive to hierarchies in multinational companies, agencies or government.
In addition, these categories of confidential sources include backstabbers, gossips, snitches and whistle blowers, among others. Moreover, the sources are always reluctant to own up to their information. Another issue that has been rife in journalists’ line of work is their interpretation of source protection according to the first amendment.
To them, confidential sources should be treated as so irrespective of whether they have been published or not. However, this conflicts laws in various states in which unpublished information is excluded from absolute as well as partial protection. This has brought about dispute in court as journalists try to defend both published and unpublished sources.
Moreover, due to the importance of confidential sources in revealing information that is socially advantageous as well as harmful, it is necessary that their protection be upheld irrespective of the publication. Freedom of the press was entrenched in the constitution and was to be upheld in all circumstances in order to allow free flow of information. However, this cannot be achieved when confidential sources are not protected.
On the other hand, the media has a responsibility of providing information that is advantageous to society as well as upholding moral ethics. They also have a responsibility of protecting confidential sources. In this regard, confusion arises on the balance between protection of confidential sources and subpoenas.
However, this does not renege on the belief in protecting confidential sources in order to promote their integrity and flow of information (Shepard 5-30).
How the law does and does not give journalist a right to protect confidential sources
In numerous occasions, United States has been accused of endangering democratic right of free expression as outlined in the first amendment. This sentiment is shared by the international federation of journalists (IFJ) which has criticized the U.S.’s recent approach to protection of confidential sources.
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To support this, Aidan white, who is the general secretary to IFJ argues that judges in the United States bullies journalists into disclosing their sources. Moreover, they are continually threatened by jail if they talk government employees into revealing information of great concern to the public.
This has caused uproar among journalists and stakeholders on how the law hinders protection of confidential sources. For instance, Judith Miller, a reporter for the New York Times faced jail after she was held in contempt over her refusal to disclose the source of a story from Whitehouse, which was never published.
Moreover, since revealing a CIA agent’s name is deemed a criminal offence in the United States, this complicated the matter. Furthermore, it shows how difficult and complex the matter was to both reporter and judge. Besides, it was deemed to have negative impact on Whitehouse and its integrity.
In this regard, the judge threatened Miller with jail in order to reveal her source. It is important to note that use of subpoenas has intruded on the process of newsgathering. This is mainly because it deals with both confidential and unpublished information, which are significant to the work of journalists.
The law has had its effects on achievements of the first amendment. Moreover, it suppresses the free will of media to be independent and free from influence of the government. In addition, the law deters media from covering matters that may result in subpoenas.
It is also important to note that about 39 states along with the District of Columbia adopted shield laws that are aimed at giving varying degrees of guard against subpoenas. In this regard, some shield laws protect journalists from involuntary disclosure of the sources of confidential information.
However, they are not protected against unpublished materials. Furthermore, the type of legal proceeding involved also determines whether protection is provided or not. Moreover, other factors such as whether the journalist is involved in proceedings also determine protection against subpoenas. In this regard, the law protects as well as deters journalist’s right to protecting sources of confidential information.
For instance, majority of states give journalists the right to protect sources of confidential information if they are published. In addition, other states allow them to protect sources if the type of legal proceeding is civil. Again, this happens if the role of the journalist is an independent third party.
However, this changes when the journalists takes the role of a defender in which case he/she may be forced to disclose his/her source. In addition, this happens when the type of legal proceeding is criminal. Besides, this is also necessary when the information is not published. In this regard, the law does and does not give journalist a right to protect confidential sources (Shepard 10-68).
Why the question of “who is journalist?” is such a perplexing one for law
The definition of a journalist has brought about numerous issues as the law tries to outline those who are free to claim protection. Stakeholders and media fraternity claim that privileges to journalists should be based solely on the first amendment. However, this does not stand fully because the privileges in first amendment are not limited to journalists but also the citizens.
This makes it difficult to establish whether the law only applies for freedom of press as well as whether journalists are like other citizens. To this extent, defining a journalist is quite complex given the number of confusions that it draws. For instance, if the first amendment law is to be utilized in the case, then they are to be considered as other citizens.
However, this is not the case because they perform different functions. In this regard, it is important that definition of a journalist be well put out in order to iron out these issues. For instance, depending on the kind of regulations brought about, each law tries to define a journalist.
For instance, the state of Delaware defines a journalist as one who earns his/her livelihood or principle livelihood from the practice of preparing, or obtaining information for dissemination to the general public with aid of facilities that produce them in mass.
Moreover, it adds that a journalist can be one who acts as an agent of media. However, it is important to note that a common definition of a journalist is still unclear as each state interprets it differently and this becomes the bone of contention to solving privilege issues (Shepard 55-110).
Privileges of journalists have been the bone of contention between media and the law since 2000. They try to define a journalist as well as lay out their rights and limits concerning protection of confidential sources. Jason, in his book that explores privileges of journalists tries to shed light on the relationship between law and ethics.
In addition, it proposes on how the courts should define a journalist as well as grant him/her the right privileges. In this regard, Jason’s book finds out that the bone of contention between media and law is definition of a journalist.
He therefore believes that once this is sorted out, privileges given to them will be well defined. However, this is far from being achieved due to complexity in the matter of protecting confidential sources (Shepard 15).
Shepard, Jason. Privileging the Press: Confidential Sources, Journalism Ethics and the First Amendment (Law and Society), New York, NY: LFB Scholarly Publishing LLC, 2011. Print.