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(Reprinted from the Chronicle of Higher Education, August 12, 2005)


A Law to Protect Scholars


By Rik Scarce

With good reason, the journalistic world has rallied behind Judith Miller, a reporter at the New York Times who was jailed July 6 after having been found in contempt of court. She has been hailed as a hero by many people and as an example of what all reporters should do to protect their confidential sources when the government tampers with the information-gathering process.

Miller does represent those things. She is also the poster child for a revived cause: a proposed federal "shield law" intended to protect journalists against imprisonment, the worst-case legal scenario when they refuse to betray their confidential sources. Such a law is being proposed by Representatives Rick Boucher, Democrat of Virginia, and Mike Pence, Republican of Indiana, along with Senators Christopher J. Dodd, Democrat of Connecticut, and Richard G. Lugar, another Indiana Republican.

The problem is, reporters aren't the only ones who need protection from governmental meddling in their work. Unfortunately, however, only journalists are covered by the proposed legislation—a fact that disturbs me deeply because I hold the dubious distinction of being the scholar jailed in the United States longer than any other for protecting confidential sources.

As a Ph.D. student in 1992, I was conducting research on the radical environmental movement when the federal government came knocking, believing I had interviewed people involved in a break-in at a federally supported laboratory at Washington State University, where I was studying. Like Miller, I refused to answer some of a prosecutor's questions on the grounds that compelling me to do so violated the First Amendment's free-press provisions. And, like her, I was locked away by a judge for an unspecified amount of time—although it is unlikely that Miller will serve longer than four months.


  My release, after more than five months in jail, came only when the judge in my case realized I would never betray the promises of confidentiality that I had made to research participants.  

My release, after more than five months in jail, came only when the judge in my case realized I would never betray the promises of confidentiality that I had made to research participants. If Miller leaves jail with her honor intact, she will tread that same woeful path.

Journalists often frown on confidential sources. However, social science requires information gathered from large numbers of people, not from single, knowledgeable individuals. To protect our sources, we scholars are ethically bound—and, under federal "human-subjects laws," usually legally bound—to conceal their identities. Are not those promises of confidentiality at least as valuable as those made by journalists?

Much of what social scientists do can rightfully be understood as investigative journalism on steroids. For example, for a single scholarly paper, an ethnographer like me may interview 50 to 100 people for one to three hours each. We winnow through interview transcripts, carefully following accepted methods for identifying key concepts and theoretical markers. Once written, a paper goes to multiple peer reviewers who evaluate an article based on its scientific merit.

Given our careful data analysis, the frequent use of our findings to shape policy, and our contributions to society's storehouse of knowledge, scholars deserve the same legal protections that members of Congress are now contemplating for our journalist colleagues.

Precisely those kinds of protections were the subject of the late Sen. Daniel Patrick Moynihan's Thomas Jefferson Researcher's Privilege Act of 1999. That legislation would have created a shield law to cover not only journalists, but all of society's information gatherers. Under Senator Moynihan's legislation, which died in committee, researchers and writers working on "academic, commercial, scientific, or technical" issues would be safeguarded from prosecutors subpoenaing their notes, photographs, film, e-mail messages, and the like.


  It's also a bad thing for democracy when only some of us enjoy fundamental rights. Do we limit which professions enjoy free speech?  

What are the possible objections to such inclusive legislation? One—that scholars are undeserving of First Amendment protection because they aren't members of the mainstream press—doesn't mesh with the Supreme Court's broad interpretation of the "press" concept. No less an authority than Chief Justice Warren E. Burger once wrote in a Supreme Court opinion: "In short, the First Amendment does not 'belong' to any definable category of persons or entities: It belongs to all who exercise its freedoms." Narrowing that definition risks curbing the development and dissemination of knowledge central to the mission of the social sciences. It's also a bad thing for democracy when only some of us enjoy fundamental rights. Do we limit which professions enjoy free speech?

Another concern is that because scholars do not work for publishers, how can we claim with any certainty that our research will be published? Indeed, we almost never have a guarantee of publication, precisely because of the canons of science—in particular, the peer-review process. Typically, scholarly-journal editors reject more than half of all submissions. However, we are working for and toward publication, making a good-faith—and career-essential—effort to see our studies through to the black-on-white of the printed word. It's worth mentioning that Miller went to jail having never published a word on the case the prosecutor is investigating.


  The lack of a federal shield law prompts social scientists to limit their assurances of confidentiality to research participants for fear of going to jail. As a result, we practice self-censorship, deliberately restricting the topics we study.  

Quite simply, without scholarship about society that is based in rigorous methods and sound analysis, we will not know with scientific certainty about the good, bad, and ugly of our culture. True, even our less than "free" press enables scholars to publish extensively about many subjects. Yet the lack of a federal shield law prompts social scientists to limit their assurances of confidentiality to research participants for fear of going to jail. As a result, we practice self-censorship, deliberately restricting the topics we study. Absent a shield law, it takes a brave scholar to conduct in-depth interviews with, for example, polygamous fundamentalist Mormons or violent inner-city drug dealers.

Just ask Richard A. Leo, an associate professor of criminology, law, and society at the University of California at Irvine, and Russel Ogden, an instructor in criminology at Kwantlen University College, in British Columbia—two scholars whose work has been drawn into the legal system's vortex in recent years. When he was a graduate student at Berkeley, Leo faced a contempt citation stemming from his research on police officers. Ogden, while a graduate student at Simon Fraser University, was threatened with contempt by a coroner over his data on AIDS victims' suicides.

We social scientists who do research on such subjects, and just about any other controversial topic, expose ourselves to heavy-handed police and prosecutorial treatment: interrogations, grand-jury appearances, and legal intimidation. And we do so all in the name of obtaining deeper understandings of real and troubling aspects of our society. Without such knowledge, how can we as a country expect to resolve social ills?

Social science exists to explore, interpret, and discover, and its greatest service occurs when it informs public policy by doing those other things. We need good answers about what ails us—and what we are doing right as a society. Unfettered scholarship is the best means to those answers, so let's shield all members of the press from unwarranted governmental intrusion.



Rik Scarce is an assistant professor of sociology at Skidmore College. He is the author of Contempt of Court: A Scholar's Battle for Free Speech From Behind Bars (AltaMira Press, 2005).


©2005 the Chronicle of Higher Education




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