Hastings Communications and Entertainment Law Journal


Cathy Packer


Would a federal shield law hamper the U.S. Department of Justice's power to combat terrorism and other crimes? Would the law protect the media from the chilling effects of federal subpoenas? Or would the law unwisely grant the already powerful media legal rights denied to other citizens? And who should have the power to decide whether to allow the media to refuse to comply with federal subpoenas? These and similar questions about how power should be distributed among branches of the federal government and the media were at the center of the Congressional hearings and debate on the proposed federal shield law. Social architecture is a metaphor that views lawmaking as a process of distributing power among groups in society. The metaphor rests on the principles that legal and social structures are products of design and that law can define the power relationships in society. This article explicates the distribution-of-power arguments surrounding the shield law and concludes, in part, that the federal shield law was derailed due to Congress's failure to agree on how to resolve the power issues. When shield law legislation again comes before Congress, Congress should enact a shield law that distributes power in a way that remains true to the broad outlines of the social architecture drawn by the Framers.