Should the indictments of the Planned Parenthood videomakers chill journalists?

In so doing, that case follows a troubling pattern in American constitutional jurisprudence. Ag-gag and other laws that specifically target speech based on its content are invalid, but general laws can be applied to stifle reporting without running afoul of the Constitution as construed by the Supreme Court. The justices have repeatedly ruled that, despite the express protection in the First Amendment for freedom of the press, reporters and other investigators must follow the same rules as everyone else.

For example, in a landmark 1972 ruling, the high court held that the First Amendment does not entitle a journalist to shield confidential sources. Although nearly all states provide some protection for a reporter-source privilege, Congress has repeatedly rejected a federal privilege.

As a consequence, reporters can, and sometimes do, go to jail as the price of shielding their sources. The Planned Parenthood case reveals that activists — and journalists — might also have to go to prison for undercover reporting if they violate any laws to gain access to the targets of their investigation.

Consequently, the public fails to learn about some important matters. Whistleblower statutes provide a modicum of protection for insiders who expose wrongdoing, but the risks to career and reputation frequently prevent those in the know from coming forward.