John Armor: Press has enough protection; Reporters who choose to be martyrs don't warrant a federal law.
October 16, 2007
This article originally appeared in USA Today: link
WEDNESDAY, OCTOBER 16, 2007
All Americans should be equally subject to law. Not even the president has a “right” to evade the law.
Chief Justice John Marshall established this principle when he required President Thomas Jefferson to give evidence in Aaron Burr’s treason trial. That concept was later applied to presidents Richard Nixon and Bill Clinton.
A federal shield law would be unwise for offering more protection to all forms of the press, now expanding to writers on the Internet, than the First Amendment already gives. The idea that reporters are less obligated to give evidence in court about a crime or relevant information in a civil case, would put them in a preferred position above even the president.
In those states without so-called shield laws, a few reporters have gone to jail for refusing to testify in court. When you consider that hundreds of thousands of Americans have given their lives to protect and maintain the Constitution, including the Bill of Rights, it is a trifle that a few reporters might serve a few months in prison if they believe they are also defending the First Amendment.
Two centuries ago, Henry David Thoreau went to jail for not paying his war taxes. Ralph Waldo Emerson came to visit and asked “Why are you here?” Thoreau replied, “Why aren’t you with me?” Writers who choose to be martyrs don’t warrant a federal law to protect them from themselves.
A federal law placing reporters above the law would be dangerously open to abuse. From long experience, I guarantee that a phalanx of defense counsel will seek to prove that every citizen who has a computer is also a blogger, and by being a blogger is also a reporter and thus shielded by the law.
I have seen a lawyer argue with a straight face to the Supreme Court that a parking lot in Richmond, Va., was actually a river, because the James River had once run there. No, the American press has sufficient protection now. If any state feels differently, it can enact a shield law. Many have not done that, for good reason.
John Armor is a lawyer and writer in Highlands, N.C., and a counsel to the American Civil Rights Union, based in Arlington, Va. He was a Republican candidate for Congress in 2006 and has participated in First Amendment cases before the U.S. Supreme Court.