TRAGESER: Pendleton case aside, shield laws remain a bad idea

By JIM TRAGESER - Staff Writer | Sunday, August 24, 2008 12:31 AM PDT ∞

A case at Camp Pendleton has the national media in a tizzy over supposed First Amendment violations by government prosecutors, and has some quarters again clamoring for a national "shield law" to protect reporters from being called as witnesses in trials.

At issue is an interview Marine Staff Sgt. Frank Wuterich gave to the CBS news program "60 Minutes." Military prosecutors want to see the entire videotape of the interview, and not just the edited portions the network aired (as reported in the North County Times on Aug. 3). CBS has appealed, arguing that the First Amendment protects it from having to turn over the tapes.

Now, to be fair, in this case there's good reason to question whether the videotapes really are relevant to prosecutors' case against Wuterich. And the Constitution's Sixth Amendment ---- which is no less important than the free-speech provisions of the First Amendment ---- guarantees only those accused of a crime the right to force witnesses to testify.

There is nothing in the Constitution giving the government the right to compel testimony; that right derives from English Common Law and precedent.

But the so-called "shield laws" ---- which several states have passed and which Congress has been considering at the federal level ---- set journalists up as a special class of citizens, exempt from the Sixth Amendment obligation to give testimony when subpoenaed by a court.

Since the 14th Amendment erased the racial classifications of the original version of the Constitution, we've had a governing document that treats all citizens the same. The founding ideal of the United States was to be a nation of individual citizens, with rights, duties and obligations incurred as a citizen, regardless of ethnic background, religion, chosen profession or any other way that had been used in European societies to limit who could participate in a nation's governing.

A truly strong press doesn't need government permission or special laws to do its job. We take the basic First Amendment rights granted to all citizens, and the open meeting and public disclosure laws that keep our elected and appointed officials answerable to the people, and report on what they're doing.

What's worse for those of us who work in this trade, shield laws have the deleterious effect of making us dependent on a judge to grant us legitimacy. For if state shield laws say members of the media are immune to the normal rules governing subpoenas, they don't define who is a member of the media. For that, a judge must decide.

The irony is that while many who work in the established media argue that people who write online blogs are not reporters covered by shield laws, nearly every newspaper west of the Mississippi began life as an analog blog: An ambitious young reporter with a press in the back of a wagon pulled into a new town on the frontier and set up shop. Would the 19th-century predecessors of the North County Times have been considered "real" newspapers by the more-established outlets back East?

Regardless of what happens in the Wuterich case, shield laws remain a bad idea, both for the press and those we seek to serve.

Contact staff writer Jim Trageser at (760) 740-5408 or jtrageser@nctimes.com.

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