Information from a confidential source would be excluded as evidence under the hearsay rule, wouldn’t it? In that case, why would there be any need for a shield law? The journalist, by publishing the information, is staking his professional reputation on the validity of the information. In a courtroom, however, one is required to present the best evidence. Testifying that “Joe told me” is unacceptable. Consequently, it seems that the Rules of Evidence should provide all the protection a Shield law would provide.
An effective shield law needs to identify journalists in order to be useful. The first amendment, however, does not provide protection only to a select group of people who call themselves journalists. It provides that protection to all. In 1900, freedom of the press was pretty much limited to those who could afford a substantial newspaper. In 1787, there were no substantial newspapers, but it took years of apprenticeship to learn to operate printing equipment. In 2009, freedom of the press is available to anyone who can buy a $300 computer and budget $100/year for web hosting. If you can’t afford that, you can still use a computer at the library, and take advantage of free hosting which offers much, if not all, of the freedoms of your own website.
We’re all journalists now, or at least potential journalists. A shield law makes sense only if it protects everyone – and it makes so much sense that it ought to be covered under the 9th amendment.
