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"Nothing But the Truth" About the Federal Shield Law
My film Nothing but the Truth, a thriller about how far a journalist will go to protect a source, is going to open for one week in New York and Los Angeles on December 19th for what the inside-baseball people call a "qualifying run." It premiered back in September at the Toronto Film festival. Everybody connected with it was very happy with the reviews and especially the praise that was lavished upon the actors -- Kate Beckinsale, Alan Alda, Matt Dillon, and Vera Farmiga in particular.
What I'd like to do is something a bit unusual. I want to bring attention to a review that was a "mixed-negative." It appeared at a site called Cinemablend and was written by a critic I was not familiar with but who wrote in a crisp and efficient style that I liked. I want to discuss what she wrote because of a broader point that needs to be made about how this country feels about journalists and their rights to protect their sources.
In the column, the critic singled out the quality of the acting and a couple of other nice things before she went on to discuss a very specific scene. It was here that the review started to get a bit nasty: "[That scene is] the point where the movie goes from mildly topical to completely off the liberal rails."
"Off the liberal rails."
Okay. Well, that comment is coming from somebody who may or may not be a conservative, I don't know, but certainly it is not somebody who understands where either Republicans or Democrats stand on the issue of journalistic privilege when it comes to protecting sources.
Let's be clear.
The fight to get a shield law barring the government from being able to jail journalists is itself a non-partisan battle. Indeed, it so happens that the prosecutor in this film, played by Dillon, is a Democrat.
The truth is that right now Republicans and Democrats are banding together to get a shield law passed in the Senate. It has already made its way through the House -- where 176 Republicans voted for it. That's right: Republicans
The Senate Judiciary committee has approved it by a non-partisan vote of 15-3.
The two top senators leading the charge are Arlen Specter of Pennsylvania and Richard Lugar of Indiana. Both Republicans.
Even Ted Olson, the former solicitor general for the Bush administration is on the side of the shield law. Here is what he said testifying about two San Francisco Chronicle journalists who were being threatened with jail time for refusing to name their sources in the BALCO scandal.
One of the most vital functions of our free and independent press is to function as a watchdog, working to uncover stories that would otherwise go untold. Journalists in pursuit of such stories often must obtain information from individuals who, for fear of retribution or retaliation, are unwilling to be publicly identified.
Olson is exactly right.
An argument has been made that a shield law would serve to harm our national security.
Olson, the Republican, has something to say abut that as well:
But we do not recoil from judicial oversight when it comes to attorney-client or physician-patient privilege, or search warrants or FISA warrants. And there is no reason we should reject it when it comes to journalist-source communications.
Now, do you know who is opposed to the Federal Shield Law?
Whomever is in power. That's who.
Yes, even, probably, the Obama administration.
Under Obama, it is more likely than not that stories that are critical of the administration will come from sources that tend to the conservative. They are the people who will need protection if there's a shield law.
The articles about Clinton that plagued his administration -- Travelgate, Whitewater, and so on -- came from critics of the administration that were generally not "liberal." You can be damn sure that those "leakers" or "whistle-blowers" wanted protection.
I suppose when any movie dealing with politics is released there is a knee jerk assumption that it is propelled by a liberal agenda. That may be true most of the time, but not with Nothing but the Truth.
The film opens in New York and Los Angeles on December 19th.
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I guess in the fantasyland (propagandaland?) that is Hollywood, we still have an honorable "free press" at the federal level that has somehow earned the right to be exempted from the questions of federal grand juries investigating potential wrongdoing, unlike every other citizen. Despite the notorious Judith Miller - now an employee of FOX - among many others.
The "powerful" in this situation are the MEDIA OWNERS who would likewise be shielded by a federal shield law for their employees.
If opposing such a dangerous and unearned privilege for an already-privileged (and now primarily corporate-profit-serving) occupation is considered a "liberal" or anti-"bipartisan" position, then count me in regardless of label, along with officially-fingered anthrax leaks victim Hatfill's attorney(s) and Special Counsel Fitzgerald - whose hard work and INTEGRITY gave us most of the vanishingly-rare accountability for widespread and obvious (yet media-tolerated) wrongdoing by high government actors during this presidency.
At the federal level - as opposed to the state level where shield laws exist - CLASSIFIED information is everywhere, and its abuse is used as a SWORD via selective leaks to media pals by the "powerful" INSIDE the Executive Branch, as other commenters noted. That is an extremely important distinction between state and federal journalism beats. A proposed federal shield law is SOLD as necessary for LEAKERS, so lobby for meaningful WHISTLEBLOWING legislation, and leave the self-serving government leakers and their media enablers out of the self-sacrificing whistleblowing - the genuine PUBLIC interest serving - debate.
I agree with Rrhain: "There is a difference between protecting the identify of a whistleblower who is giving a journalist information on a crime that is being committed and protecting the identify of someone who is in the process of committing a crime." I would clarify it in that the crime being committed is being done by one or more in power. The level of Bush administration secrecy created to hide malfeasance, fraud and crimes up to and including crimes against humanity plainly demonstrates the necessity of safeguarding those with information the citizenry needs. Coupled with protection for the sources of investigative reporters is the need for a strong whistleblower law that would truly protect those who go public with the information we need to stop legal abuses and frauds.
Mr. Lurie goes a bit overboard in his allegation that even Barack Obama would pose a threat to some journalists. When he takes office I think he would be the least likely to pose a threat to journalistic freedom.
But I worry about a Shield Law that goes too far. For instance, when a source dies, confidentiality for that source should die also. I can see providing protection to that source's estate from civil suit's after they died. But the journalist should be required to reveal all they received.
The problem is journalists tend to be as eager to protect their stories exclusivity as they are eager to protect their source. Without mandating that source shielding died with the source a journalist would be tempted to maintain the stories exclusivity past death.
With great protection should come great penalties for journalists who withhold a source's identity after the source dies. Our government is based upon checks and balances. A Shield Law should also protect society from bad conduct by a journalist.
The greatest danger to journalists does not come from the top. It comes from the middle and lower-level flunkies and guardians, many of which have little or no compunction to causing harm to anyone who gets in their bosses' or their party's way. Many of these people have real power to do harm themselves and have little or no compunction in using it.
Rod, NBTT goes above and beyond the predictable partisan diatribe of that glib Cinemablend critic's mischaracterization. Having been lucky enough to have attended your William Morris screening, I can assure those who have not yet had the privilege of seeing this amazing movie that it's character driven non-euclidean storyline is slippery, opaque and --most of all-- gut wrenching. Congratulations for not only having the courage to delve into an issue that is so multifaceted and complex but for managing to emerge with such a masterpiece of an achievement. As for the Cinemablend critic? Now, here's where I shall direct you to that Einstein quote about mediocre minds...
Why it would be a surprise that Republicans and conservatives would favor journalistic shield laws. Their stance on that should be no different than their more liberal counterparts. Naturally, the administration (either party) would like to control information and would object to such a law. As long as the journalist is not a party to crimes committed, the laws would do us a great service, just as the whistle-blower protection laws have. I don't know how we would write such laws to limit abuse. A shield law is a two-edged sword though, and I don't know where that protection ends, I suppose that is when people are getting hurt, but that line will be very fuzzy and hard to define. Journalists will always be at risk of being pressured to reveal sources, and sources will still run a risk of being exposed, even with a federal shield law. All it takes is for an agency , govt. office, etc to go to court and claim that lives or national security are at stake, and there goes your protection. Abuse can go either way. A "source" can be a criminal who is bragging, or even the government passing some false info out to harm someone else.
I have devoured all of Rod's films, but in my opinion, his "Contender" is probably the best political filmI have ever seen. The only other films that even come close to it are Costa-Gavras's "Z," John Frankenheimer's "Seven Days In May," and Alan Pakula's "All The President's Men."
Rod, your movies are great, and your DVD commentaries are even better. Keep up your great work! Here's to a free press, a federal shield law, and more political films from Rod Lurie. In a perfect world, he'd be doing a radio talk show again, as well.
Two words: Judith Miller.
Ms. Miller is an interesting point because the problem with her was not that she was protecting sources but rather that her source committed a federal crime in talking to her. There is a difference between protecting the identify of a whistleblower who is giving a journalist information on a crime that is being committed and protecting the identify of someone who is in the process of committing a crime.
That is, the act of leaking a CIA operative's name to the press is a crime in and of itself. For Ms. Miller to try and claim "journalistic privilege" and not reveal her source in this case is disingenuous at best. Privilege does not extend to people who are committing crimes: Your doctor is required to notify the authorities if you show yourself to be a harm to others. Your lawyer cannot knowingly allow someone to commit perjury. Why should a journalist think he or she can conceal the identity of someone who, through the journalist, commits a crime?
Good point.
I am STRONGLY against shield laws that protect JOURNALISTS more than lawyers regarding client-attorney privilege or doctors in doctor-patient relationships. The last eight years have convinced me that it would be a HUGE disaster to provide cover to liars...
A shield law that protects sources outright would equally be a travesty.
Now, a shield law that protects sources from PUBLIC disclosure I could support. But they MAY, under various circumstances, have to testify to a judge or other officiating body to confirm their contribution to the public good - they may get to do so in a non-public manner, also with limits as to a defendant's rights regarding the ability to confront their accusers.
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Agreed. A law completely protecting the identity of a source allows the possibility for journalists to fabricate any information and claim it came from a protected source. Much like the Bush administration's abuse of the State Secrets Privilege, this would be easy to abuse and needs to be able to have some kind of oversight. Of course protection needs to exist, but it can't be unquestionable.
Journalists (maybe not all, but an awful lot) have failed their profession, betrayed their "ethics" and their duty to the public, and it wasn't because all of them were sitting in jail making a stand on principle. A shield law is about protecting sources, not protecting journalists, and journalists have done plenty of harm already by knowingly protecting fraudulent sources.
And which journalists qualify for the privilege of consequence-free obstruction of justice? Wouldn't that include everyone who blogs?
But what about the irony of ABUSING the shield law to ALLOW the government to peddle false information to the public through it's PROTECTED pals in the press?
This abuse has happened MANY times in the past 8 years--most notoriously re: Rove-Cheney-Libby, etc. and Valerie Plame.
Sounds great, but what if we someday had leaders that did not respect the rule of law. What if they ignored the American Constitution? Wait, this sounds familar.......
The industry needs standards before they get a shield law.
Which industry, and what would you propose?
She's either too naive to understand political machinations or she called in a sloppy review.
I don't think its fair for Richard Lugar to represent both Indiana and Nevada in the Senate.
I wondered about that also ... but since I gave Gates credit for heading with the CIA earlier today, I'm in a forgiving mood :-)
Proud of yourself?
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