Shield Law

Overview

Specific statutes to protect journalists from being forced to reveal their sources to investigators or courts are rare outside of the United States. Other nations that give journalists at least some protection from subpoenas and similar official coercion usually do so through court interpretations of constitutional guarantees of press freedom or through [Page 1284]general codes of evidence or court procedure. Russia's Federal Law on the Mass Media, for example, is one of the few national laws providing for source protection, and many nations from the former Soviet Union have adopted similar legislation. However, the law allows the government to require news organizations to reveal sources if needed for a criminal investigation, and Russian journalists have found the protection to be stronger on paper than in reality. A change in Russia's Criminal Procedure Code in the early years of the twenty-first century, however, made it harder to punish the media for refusing to reveal sources, which may strengthen the position of Russian journalists.

International law also recognizes a limited right of journalists to protect sources. The European Court of Human Rights in 1996 interpreted the European Convention on Human Rights' Article 10, which guarantees freedom of expression, as providing journalists with the right to conceal source identities. And the International Criminal Tribunal for the former Yugoslavia (ICTY) recognized a limited right of war correspondents to keep their sources confidential in 2002 and reaffirmed that finding in 2005.

In the United States, the Constitution's First Amendment states that Congress cannot abridge freedom of speech or of the press, but whether that also means that journalists cannot be required to identify sources has long been a point of contention. There is no national protection for journalists and their sources at the national level, although Congress has often considered such legislation. Support for shield law legislation rises when the number of journalists facing fines or jail time increases, as was the case in 2004–06 when several journalists went to jail rather than cooperate with federal criminal investigations or individuals suing the government for violating their privacy.

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