Book Review: A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism, by Dean C. Smith

Abstract

Dean C. Smith A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism. El Paso, TX: LFB Scholarly Publishing LLC, 2013. 297 pp.In June 2014, the push for a federal shield law to protect journalists and their confidential sources was reignited once again. The catalyst was the Supreme Court's refusal to hear an appeal from James Risen who has been subpoenaed to testify for the government in the prosecution of a former CIA officer accused of leaking classified information. Following the decision to not hear the appeal, a variety of media organizations urged the U.S. Senate to schedule a vote on a proposed federal shield law that would offer journalists like Risen protection from unreasonable subpoenas.Despite this push for a federal statute, much of the rhetoric surrounding the reporter's privilege is focused on the First Amendment and the Supreme Court's 1972 decision in v. Hayes, in which the Court failed to find any such privilege in the constitution. Yet much of the law in this area is comprised of state statutes. Dean Smith, professor of communications at High Point University, reconciles this seeming disconnect by adopting and testing theories that focus on the participation of nonjudicial actors in the of constitutional interpretation.The first theory Smith explains in his introductory chapter is democratic constitutionalism, as conceived by Robert C. Post and Reva B. Siegel. Smith notes that in this theory, controversy, such as the decision, encourages debate and change through the legislative process. Smith also draws on Micheal Gerhardt's work on nonjudicial precedents, which serve vital roles in the development of law. Applying what he later terms the Post-Siegel-Gerhardt model, Smith explains that as states adopt shield laws, they are contributing the understanding of the Press Clause; shield laws, using Gerhardt's terminology, are not only messages to the courts but also fill gaps in common law and constitutional law (p. 14).In an exemplary use of legal and historical research, Smith also works to fill gaps in the long-told story of reporter's privilege. More importantly, Smith weaves this story in a new way, extending the conversation beyond the seminal Supreme Court case that tends to be the focus of this issue: Branzburg was neither the beginning nor the end (p. 15). Instead, applying Gerhardt's theory, Smith reinterprets the Court's opinion in as inviting non-judicial actors to participate in the interpretive process (p. 232). Taken in this light, Smith seems to hope that statutory shield laws might look less like inferior substitutes for a Court-articulated right and more like important pieces in a larger infrastructure that, taken as a whole, creates what we popularly think of as freedom of the press (p. 15).The seven chapters of the book each chronicle a major stage in the development of that infrastructure, from the passage of the nation's first shield law to the 1972 Supreme Court case, v. Hayes, to the current state of shield laws and constitutional privilege. …