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

Abstract

A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism . Dean C. Smith. El Paso, Texas: LFB Scholarly Publishing, 2013. $80 hbk.Do few outside the courts play a role in enabling journalists to protect their sources as a constitutional right in American Is Branzburg v. Hayes more or less the whole story on the law? Is there something before or after the landmark U.S. Supreme Court case of 1972 addressing the journalistic privilege as a constitutional value?These and related questions are addressed by Dean Smith of High Point University in A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism. Smith's historical research and textual and case-law analysis is ably informed by applying political scientist Michael Gerhardt's theory of as part of Non-judicial precedents such as legislative statutes and journalists' codes of ethics pre-exist judicially created constitutional doctrine and thus govern and shape particular constitutional matters unless or until they are addressed by courts.Five chapters in the book focus on five seminal in the history of the journalistic privilege. This starts with the first state shield law in the 1890s and continues to the non-judicial developments in the 1990s and 2000s. Smith identifies several triggering events in the non-judicial evolution of the journalistic privilege. For example, Branzburg in the 1970s and the jailing of New York Times reporter Judith Miller in the 2000s triggered considerable non-judicial actions on shield laws.In analyzing the pivotal moments of the shield law, Smith examines how they intersect with various non-judicial actors in illustration of popular constitutionalism. His analysis is detailed, convincing, and well documented. Key non-judicial actors such as journalists, press clubs, newspaper publishers, and journalism and legal scholars are identified and portrayed in a lively way.His chapter-length examination of State v. Buchanan, the Oregon Supreme Court ruling of 1968, is a case in point. The Oregon decision, which the author calls important but overlooked episode, arose from the refusal of the University of Oregon campus newspaper editor, Annette Lesley Buchanan, to reveal her confidential sources.Smith's reconstruction of the case showcases how Gerhardt's theory plays out. The main actors in Buchanan included an Oregon journalism professor, a district attorney, a local lawyer, journalists, and legal scholars, in addition to the student editor. All parties are documented in fascinating detail. (Update to the author's epilogue on Buchanan: She died in February 2013.)Using Buchanan's case, the journalists and non-journalists engaged in non-judicial dialogue about the journalist's privilege, thus sending signals to the courts. Smith concludes that as Gerhardt posits, the constitutional meanings, expressed through the popular conversation with the courts, be eventually adopted by judges and made part of the First Amendment, or they could continue to live outside the courts in the form of shield laws that, in the minds of their creators, 'implement constitutional values. …