Agents of shield

Sometimes, journalists in the United States are the targets of government investigations. The Obama administration has been particularly aggressive about going after reporters to get their sources, claiming that leaks compromise national security.

Sometimes, the government just wants to mess with a reporter.

Take the case of the “repo man,” and the Yolo County District Attorney Jeff Reisig, who responded to criticism from one local media outlet, the Davis Vanguard, by dragging its editor into court earlier this month.

The DA didn’t get much for his trouble. But his actions raise questions about the rights of bloggers, citizen journalists and “nontraditional” outlets to cover the news without government harassment.

David Greenwald runs the nonprofit news site Davis Vanguard. It’s him and a bunch of interns cranking out coverage of Yolo County courts and analysis about local politics.

Earlier this year, Greenwald and crew started writing about a West Sacramento family, the Bonillas, who got into a scuffle with a repo man who had come to take their Land Rover. The matter was eventually cleared up with the bank, but months later a SWAT team kicked in the Bonillas’ door and arrested family members for grand theft, robbery and assault.

Since starting the Vanguard in 2006 to “blow off some steam,” Greenwald has been a critic of the Yolo DA’s tactics. And the Vanguard’s coverage was pretty skeptical of the Bonilla prosecution, suggesting the DA had overreacted.

In covering the case, the Vanguard published quotations and other information gathered from interviews with family members.

On May 4, the Yolo DA sent Greenwald a subpoena, ordering him to appear in court to testify about those interviews.

California has a shield law that says journalists can’t be forced to give up sources or “unpublished information.” The law is there so journalists can do their jobs, talk to whistleblowers and generally report on sensitive information without fear that they or their sources will wind up in jail.

The law dates back to the 1960s, and though it’s been amended a few times, it’s still written for an older media environment.

It speaks of protection for journalists “connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service.”

Bloggers and websites and other forms of digital distribution aren’t mentioned. But surely, an established 501(c)(3) organization, which raises money and has been publishing since 2009, qualifies for shield law protection, right?

Well, in court on May 5, Greenwald said the DA “argued that the Vanguard is not a real media source and should not qualify.”

In the past, Greenwald says, the DA has also excluded the Vanguard from press conferences, also on the grounds that DA doesn’t consider the site a legitimate news source.

If the judge agreed Greenwald wasn’t protected, he could be forced to testify. “The DA wanted to go on a little fishing expedition,” Greenwald said.

That’s when attorney Josh Kaizuka stepped in to represent Greenwald, pro bono, because “I think the work David is doing is great.”

And Yolo Superior Court Judge David Reed agreed that the Vanguard should be protected under the shield law. In the end, Greenwald took the stand for five minutes to confirm that he had indeed interviewed Bonilla and written a story about it. But the DA’s fishing expedition had to be called off. “Completely useless,” Greenwald concluded.

“In the end, I think the DA was trying to mess with me. I think he was trying to rattle my cage,” he says. Without shield protection, Greenwald feared a precedent that “every time I interviewed a defendant, they were going to haul me in.”

With shield protection, “We made it such a hard process for them, and they got so little out of it, they’ll never try this again.”

But what if the subpoena came a few years ago, before Greenwald incorporated as a nonprofit, when he was just a blogger blowing off steam?

“What if David or someone else went in without an attorney and tried to use the shield law?” Kaizuka asks. Would a judge listen?

What about the completely independent writer who tackles a sensitive story on their own blog, or a new platform like Medium? Where is the line for shield protection?

During debate over a federal shield law, U.S. Senator Dianne Feinstein argued that only professional, salaried journalists should get shield protections. Disagreements about who is a “real journalist” are part of the reason that shield legislation still hasn’t gotten through Congress.

We better keep eye on these government efforts to define the real journalists. The danger is that we’ll wind up with a class of government-approved journalists who have more rights than others. If so, it will probably be the reporters and writers who are most critical of the government that won’t get the shield.