The problem with using the argument "journalists aren’t above the law" is it actually places journalists below the law, suggesting that journalists don’t have the same rights as other citizens to refuse compliance with an order that goes against their ethics or that they believe to be unlawful. The legal system has built-in remedies for those situations. The willingness to back beliefs by facing those consequences rather than complying is an act of civil disobedience and journalists have as much right to civil disobedience as anyone else. Like any other citizen we also have to be prepared to pay for exercising that right, which is why Judith Miller’s current address is the Alexandria Detention Center in Virginia aka prison.
Along those lines, shield laws aren’t in place to elevate journalists anymore than whistleblower laws create a different class of citizen. Both are efforts to provide a flow of information that might not otherwise occur. Move beyond Judith Miller and whether you think she’s picked the right fight, whether you respect or detest her reporting. Think about the stories that might not be told and the damage that could do. Should bloggers and independent journalists be included in shield laws? Anyone who accepts the responsibility of newsgathering and reporting should be covered regardless of title or medium.
And all of us should think very carefully about the way we grant confidentiality. Perhaps we could work out agreements like the plea bargains that pepper "Law and Order." Tell us the truth and you’re covered. Lie or abuse and all bets are off.
Updated 7/13/05 with clearer language about who should be covered by shield laws.