Journalism and shield laws: when the “who” ceases to matter

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Por Carolina Santana Sabbagh

Shield Laws: “legal rules which protect journalists against the government requiring them to reveal confidential sources or other information.” (SPJ, http://www.spj.org/shieldlaw-faq.asp)

The question on who should be considered a journalist with regards to shield laws is an important one, but one that derives from the presupposition that the comprehension of the meaning of “journalist” is necessary to understand the subjects and scope of shield norms. Though these laws were originally intended and designed to protect journalists, their configuration and construction raises an important question: Why only “journalists”? If shield laws provide special protection under the idea that by doing so they protect the free flow of information, how free is that flow if only some are allowed to affect it under protection? It would seem that the free flow of information would demand, due to its own nature, that protection is not a selective offer of the Law, but a democratized right, that distinguishes not on who (subjective criterion) has access to it but on why (objective criterion).

A different -yet related- question, takes us to similar answers. If we would approach the question “who is a journalist”, with the intention of defining who is protected by shield laws, the search for an answer would probably take us to an ever-broadening concept.

Immersed in this digital age, in the days of micro-blogging, online magazines, and social media, we can hardly tell the difference between a “journalist” and a person who blogs about certain issues and has investigated and revealed important information… whether that person should (or should not) be shielded by the law with regards to source disclosure.

Judicial decisions have also been shifting away from the traditional idea of the shield law subjects. Hence, though some jurisdictions (i.e. the District of Oregon) have defined shield law beneficiaries with a traditional outlook limiting it to professionals with a degree in journalism or people associated to a news outlet (United States District Court for the District of Oregon in Obsidian Finance Group, LLC  v. Cox), increasingly, others have presented a less orthodox approach, a more inclusive notion that also encompasses bloggers without these professional backgrounds. As the New Hampshire Supreme Court declared, “freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals.” (The Mortgage Specialist, Inc. v. Implode-Explode Heavy Industries, Inc.)

Therefore, the need to define who is or is not a journalist, with relation to shield laws, has been diminishing. Today, the question is more often “Why do shield laws beneficiaries have to fit a category (i.e.: journalists), that by doing what categories do, excludes?” and “Who can really tell who is definitively and fixedly not a journalist (or a potential journalist) in this digital age? ”

Carolina Santana Sabbagh

Santo Domingo Dominican Republic. LL.B. (Magna Cum Laude) by PUCMM; Masters in Constitutional Law by the University of Seville; and Harvard Law School Graduate Student, focusing on politics and government. Her areas of research and work include management and regulation of (a) governance, (b) the public communication, and (c) the political and democratic participation.

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