Academic Research

Book

Shepard, J.M. (2011). Privileging the Press: Confidential Sources, Journalism Ethics and the First Amendment. New York, NY: LFB Scholarly Publishers, LLC.

Description: In the last 10 years, American journalists have faced unprecedented legal problems in protecting confidential sources. In this book, a media law scholar and former journalist examines how subpoenas for newsgathering information have raised both old and new legal and ethical problems, at a time when journalistic independence and authority have come under attack by profound economic and social changes. The research explores the ethical and legal evolution of the privilege drawing on research into cases in the 19th century, the First Amendment principle that emerged in the middle of the 20th century, the public policy implications debated in congressional hearings in the 1970s, and the rise and fall of common law protections in the federal courts between 1972 and 2003. The author also interviews key journalists and media lawyers in recent high-profile privilege cases. In tracing the development of the journalist's privilege from colonial times to the present, the author finds a dynamic interaction among journalism ethics, free-press theory and legal jurisprudence that supports qualified legal protections for journalists.

Peer-Reviewed Journal and Law Review Articles

Shepard, J.M. (2011). Campaigning as the Press: Citizens United and the Problems of Press Exemptions in Law, Nexus Journal of Law and Policy.

Abstract: Was the documentary film Hillary: The Movie a piece of advocacy journalism or long-form political campaign advertisement?  If it is the former, First Amendment jurisprudence largely prohibits the government from placing restrictions on its content or availability. If it is the latter, the United States Congress has long argued that important government interests allow for prior restraints and a myriad of content requirements, such as disclosure and disclaimer rules. This article examines whether the “media exemption” in campaign finance laws can be narrowed or expanded in particular ways that do not violate free press principles but that support the government interests in regulating money in politics. In assessing the definitional problems inherent in the application of the media exemption, this research assesses whether journalist’s privilege law might provide a framework for resolving media-exemption problems in campaign-finance law. The research concludes that these privilege tests provide some guidance in evaluating what should qualify for the press exemption, especially now that the media exemption will only determine whether disclosure and disclaimer rules apply to speakers.

Shepard, J.M., and Belmas, G. (2010). Speaking From the Bench, Judicial Campaigns, Judges’ Speech and the First Amendment, Drake Law Review, 58(3): 709-736.

Abstract: Caperton v. A.T. Massey Coal, Inc. (129 S. Ct. 2252, 2009) raised a host of questions about when and if judges must recuse themselves for conflicts of interest based on campaign donations. In addition to the recusal issue, the case raises First Amendment questions. One possible strength of the Caperton holding is that it provides at least some remedy for egregious influence of campaign spending without real First Amendment problems. The First Amendment does influence the Supreme Court’s decisions regarding campaign expenditures and communications; in Citizens United v. Federal Election Commission (2010 U.S. LEXIS 766, Jan. 21, 2010), the Court struck down two precedents that limit spending on “electioneering communications” on First Amendment grounds. We offer a multi-element model that takes into account both of these decisions in an attempt to ensure that the public receives election information from both judges and campaign donors while still preserving the integrity of the judiciary through the option of recusal.

Shepard, J.M. (2010). “Bloggers After the Shield: Defining Journalism in Privilege Law,” Journal of Media Law & Ethics, 1(3/4): 186-216.

Abstract: Josh Wolf claims to be the longest jailed journalist in American history after courts rejected his journalist’s privilege claims and sentenced him to 226 days in prison. But was the blogger really a journalist entitled to invoke privilege protections? Academics, journalists, lawyers, judges and members of Congress have struggled to articulate legal definitions of journalism as bloggers increasingly seek newsgathering protections. This article evaluates controversies in state statutory interpretation, federal shield law proposals and federal common-law development. The article argues that the analytical evolution in federal and state case law supports expanding privilege protection to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.

Shepard, J.M. (2009). “After the First Amendment Fails: The Newsmen’s Privilege Hearings of the 1970s,” Communication Law and Policy, 14(3) , pp 373-410.

Abstract: This article explores the debates over eighty-six “newsmen’s privilege” bills introduced in the U.S. House of Representatives between 1972 and 1975 in the immediate aftermath of the U.S. Supreme Court’s ruling in Branzburg v. Hayes. The article examines archival files and congressional records of this largely ignored slice of journalist’s privilege history and identities the primary policy differences, the motives and perspectives of key advocates, and reasons for a bill’s failure to become law. This research dissects the policy arguments for and against a privilege and examines in detail the four major areas of policy disputes: the range of protections from so-called absolutist to qualified bills, the definitional problem of who is a journalist, protection of only confidential information or all newsgathering material, and whether a federal privilege statute should “pre-empt” state laws.  In evaluating the policy and constitutional arguments raised and debated in Congress, this research also provides historical context to contemporary debates over a federal journalist’s shield law.

Peer-Reviewed Conference Papers

Shepard, J.M. (October 2010). Campaigning as the Press: Citizens United and the Problems of Press Exemptions in Law. Paper presented at Chapman University School of Law Symposium, Orange, CA.

Shepard, J.M. (October 2010). The First Amendment’s Central Role in the American Gay Rights Movement. Research in Progress Paper presented at the Annual Conference of the American Journalism Historians Association, Tuscon, AZ.

Shepard, J.M. (April 2010). The Transformation of the First Amendment’s Anonymous Speech Doctrine in the Internet Era. Paper presented at the “New Media Theory: How Far Have We Travelled?”conference, sponsored by Texas Tech University and the Communications Technology Division of the Association for Education in Journalism and Mass Communication, Lubbock, TX.

Shepard, J.M. (March 2010). Legalizing a Professional Ethic: The Development of the Journalist’s Privilege in Early American Legal and Journalism History. Paper presented at Joint Journalism Historians Meeting of the American Journalism Historians Association and the History Division of the Association for Education in Journalism and Mass Communication, New York, NY.

Shepard, J.M.  (April 2009). Journalistic Duty to Protect News Sources in Early American History. Paper presented at Communications Crossroads: A Multidisciplinary Graduate Student Conference, School of Journalism and Mass Communication, University of Wisconsin-Madison, Madison, WI.

Shepard, J.M. (August 2008). The Beginning of the End? The Federal Reporter’s Privilege Five Years After McKevitt v. Pallasch. Paper presented at the Annual Conference, Association for Education in Journalism and Mass Communication, law and policy division, Chicago. IL.

Shepard, J.M. (April 2008). Alexander Meiklejohn’s First Amendment and ‘Enemy Media’ in the ‘War on Terror.’ Paper presented at Communication Crossroads: A Multidisciplinary Graduate Student Conference, School of Journalism and Mass Communication, University of Wisconsin-Madison, Madison, WI.

Shepard, J.M. (March 2008). After the First Amendment Fails: The Newsmen’s Privilege Hearings of the 1970s. Paper presented to the Law and Policy Division at the Southeast Colloquium of the Association for Education in Journalism and Mass Communication, Auburn, AL.

Shepard, J.M. (August 2007). Terrorism Over the Airwaves?  Satellite Television and the First Amendment in the War on Terror. Paper presented to the Law and Policy Division of the Association for Education in Journalism and Mass Communication, Washington D.C.

Shepard, J.M. (August 2006). Invoking Privilege Since Branzburg: Are Bloggers Like Other Non-Traditional Journalists? Paper presented to the Law and Policy Division at the Association for Education in Journalism and Mass Communication, San Francisco, CA. Won outstanding student paper honors.

Invited Conference Presentations

Shepard, J.M. (August 2011). Should the “Press Exemption” in Campaign Finance Law Protect the Colbert Report and Citizens United? Presented to the Law and Policy Division Panel, “How Much Influence Should Corporations Have on Political Campaigns?: The Effects of the Supreme Court's Ruling in Citizens United v. Federal Elections Commission Case,” at the Annual Conference of the Association for Education in Journalism and Mass Communication, St. Louis, MO.

Shepard, J.M. (August 2011). Student Open Records Audit as a Teaching Tool, Presented to the Law and Policy Division Panel, "Student Open Records Audit as a Teaching Tool," at the Annual Conference of the Association for Education in Journalism and Mass Communication, St. Louis, MO.

Shepard, J.M. (August 2011). The Post Office, the Gay Press, and the First Amendment, Presented to the Cultural and Critical Studies Division and the Gay, Lesbian, Bisexual, Transgender Interest Groups Panel, “Fringes and Fragments: The Impact of Technology on Traditionally Marginalized Groups,” at the Annual Conference of the Association for Education in Journalism and Mass Communication, St. Louis, MO.

Shepard, J.M. (April 2011). New Trends in Online Student Media, Presented at the Journalism Association of Community Colleges Annual Conference, Sacramento, CA.

Shepard, J.M. (April 2011). Media Law for Student Journalists, Presented at the Journalism Association of Community Colleges Annual Conference, Sacramento, CA.

Shepard, J.M. (August 2010). The "Ick Factor" and the TV Taboo of the Gay Male Kiss. Presented to the Religion and Media and Gay, Lesbian, Bisexual, Transgender Interest Groups at the Annual Conference of the Association for Education in Journalism and Mass Communication, Denver, CO.

Shepard, J.M. (April 2010). 10 Tips for Improving Your College News Website, Presented at the Journalism Association of Community Colleges, Los Angeles, CA.

Shepard, J.M. (April 2010). Know Your Journalists’ Rights, Presented at the Journalism Association of Community Colleges, Los Angeles, CA.