After the Department of Justice revealed this week that federal agents had subpoenaed months of phone and computer records from editors and reporters at the Associated Press, the White House responded on Wednesday with the legislative equivalent of a dozen roses and an “I’m sorry” card for the media: a promise to push for a federal shield law.
Such a law—which was proposed in 2009 but quickly died—would permit journalists who are compelled to give up their sources to appeal to a federal judge. The judge would then decide if there was a compelling public interest for prosecutors to proceed. The burden of proof would be highest in national security matters, and lowest in civil matters. Essentially, it offers protection for journalists—protection the industry has been demanding for decades.
But like lovers spurned too many times before, advocates of a free and open press, as well as First Amendment lawyers, chucked the teddy bear in the garbage and tossed the roses down the drain.
“It is a blatantly political move,” said Sonny Albarado, president of the Society of Professional Journalists. “I don’t know why anyone would think that this would appease those of us who are outraged. I think it is curious that the administration pushed for this the day after—the day after!—it got a black eye for secretly going around obtaining journalists’ work product.”
The media shield law will be introduced by New York Sen. Chuck Schumer at the request of the White House.
"This kind of law would balance national security needs against the public's right to the free flow of information,” said Schumer in a statement. “At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
“When I heard this came out of the White House, I went, ‘Yeah, so?’” said Lucy Dalglish, the dean of the Journalism School at the University of Maryland and someone who has pushed for a federal shield law for years. “They think, ‘Oh well, we threw this bone to them before and it sort of kept them happy.’ Give me a break. This doesn’t pass the smell test.”
Part of the frustration for advocates of a federal shield law is that many of them entered the Obama era with high hopes that a long-sought legislative goal of media organizations would finally be met. As a candidate, Obama had pledged to sign such a law, and support for the bill was high in a Democratic congress. But members of the president’s national security team balked, lobbyists for the bill say, as did members of Congress, who feared that it would harm law enforcement investigations. Then the WikiLeaks saga broke, and the idea was shelved.
Dalglish said even a shield law probably wouldn’t have prevented the Justice Department from doing whatever it took to track down the source of the Associated Press’s leak. “This would not have stopped those guys from doing what they did,” she said. “I am glad they are talking about a shield law. That is a good thing. But I don’t see these guys in the Justice Department paying much attention to it.”
Currently, 49 states plus the District of Columbia have some form of shield law giving journalists a degree of confidentiality similar to that which prevents priests, attorneys, and therapists from testifying in court. But the law has failed to gain traction at the federal level, partially due to indifference outside the media industry, and partially due to concerns that the law would hinder criminal and national security investigations.
But objection also can come from surprising quarters, including First Amendment lawyers who say that a shield law represents an unnecessary intrusion by government into the news-gathering business. The law currently being debated by Congress, the Free Flow of Information Act, would provide protections only to those who receive a “substantial portion” of their income from journalism, according to congressional aides. Bloggers and hobbyists, who, for better or worse represent a growing proportion of the journalism field, would be excluded.
“The government shouldn’t be in the business of deciding who is a journalist and who isn’t,” said Scott Gant, an attorney and the author of, We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age. “[The law] will clearly dissuade all kinds of people who are involved in the activity of news gathering and disseminating to the world opinions and information from engaging in that practice, and it creates uncertainty about whether someone is protected or not.”
Gant cited the example of SCOTUSblog, the widely read blog on the Supreme Court that was until recently mostly a labor of love for the lawyers and legal scholars who wrote for it. By protecting only those journalists who are paid for their work, the Free Flow of Information Act may give some reporters an unfair advantage over their amateur colleagues.
“More and more of the best coverage is going to come from people who don’t get paid,” Gant said. “These kinds of bills pop up periodically and end up going nowhere because no one cares enough. So you are probably never going to get a second bit of the apple. That is not realistic. And so you have to ask yourself if we are better off limiting to a few people. Maybe that is not better than nothing.”
Cory Reiss, a Wilmington, North Carolina, lawyer and former reporter who has written extensively about shield laws, says it’s problematic for the federal government to require a journalist to be paid in order to receive protection. Instead, he says, the law should protect those who publish at outlets that show “judiciousness in what they put in the public domain.” Amateur websites that show they have some procedures in place to decide what is newsworthy and what is not would be protected, in other words. Scandal sheets, even semi-reputable ones, would not be.
Otherwise, he says, “It leads to the question of effectively licensing reporters. Show me your pay stub and you can proceed. I think there are some issues with that type of test.”
Both congressional insiders and press freedom organizations say that either way this Congress now stands the best chance of passing a reporter shield law as any in a long time. Democrats have long supported the bill, and now Republicans, hoping to further embarrass the administration over the AP scandal, look set to sign on.
But the bruised feelings will take a little while longer to heal.
“If somebody was seeking absolution by doing this,” said Albarado, “I don’t see that happening.”