Shield Law Debate: Does It Go Far Enough?

Whistleblowers need protection. The reporters they talk to do too.

(Jason Horwitz/Getty)

Oct 25, 2013· 4 MIN READ
Eliza Krigman is a Washington, D.C.- based journalist whose work has appeared in The New York Times and The Washington Post. She writes about politics, business, and lifestyle issues.

Somewhere between “the road to hell is paved with good intentions” and “the best-laid schemes of mice and men/Often go awry,” there may lie an apt description of the proposed federal shield law.

After news broke last spring that the Justice Department had seized phone records from the Associated Press, lawmakers responded by dusting off old legislation crafted to protect journalists from government overreach. This year’s model, formally know as the Free Flow of Information Act, aims to constrain and clarify the situations under which a journalist can be compelled to testify about their confidential sources and information, or turn over information to law enforcement, as with the AP scandal.

Despite the widespread assumption that the First Amendment protects journalists and news organizations in such situations, “federal law is quite weak” when it comes to reporter privilege, said Sophia Cope, director of government affairs and legislative counsel at the Newspaper Association of America. Every state but Wyoming has some kind of media shield law or protection derived from precedent-setting court rulings, but they don’t stand up in federal court, according to the Society of Professional Journalists.

Journalists' current federal protection is now playing out in several high-profile cases. The most closely-watched involves James Risen, the Pulitzer Prize-winning author of State of War, who is battling a subpoena to testify in the trial of Jeffrey Sterling. Sterling, a former CIA intelligence officer, is accused of revealing to Risen details of a botched operation under the Clinton administration to sabotage Iranian nuclear research. Just last week, Risen said he planned to take his case to the U.S. Supreme Court.

Media lobbies and legal experts interviewed said, for the most part, they think Congress is doing the right thing by advancing the federal media shield. But by yoking the protection to legislators’ definition of who counts as a journalist, rather than to acts of journalism, detractors say, lawmakers have excluded the growing ranks of news disseminators – sometimes known as the “fifth estate”—made possible by the digital age.

“The bill does largely what we would like to see it do,” said Josh Stearns, public media campaign director at the consumer interest group Free Press, “but not the way we would like it to.” (Stearns’s organization has yet to take an official position on the legislation.)

Under the draft Senate bill that passed the Judiciary Committee last month, to receive automatic coverage, a person needs a professional tie to an established institution of journalism, or a significant body of work. These are defined broadly, to include anyone with an employment relationship with such an institution for one year within the last 20 years, or with a substantial track record of freelancing in the last five years. Those who don’t meet any of the primary criteria for coverage could be still included, at the judge’s discretion, under a so-called “safety valve” provision.

But this divided framework doesn’t sit well with Stearns and others.

“I don’t like the precedent of creating two tiers of journalists,” Stearns told TakePart. “Those who are automatically covered, and others who have to go through a judiciary discretion process.”

Such a system would require close monitoring of how judges exercise this discretion, writes David Greene, an attorney with the Electronic Frontier Foundation.

A better law would focus on whether individuals are “providing information of importance to the public,” said Jeffrey Hermes, director of the digital media law project at Harvard.

To Judiciary Committee member Dianne Feinstein (D-Calif.), though, the current language is a generous compromise. She’s concerned that a shield law could bring too many people under its umbrella.

During a committee hearing on the measure, Feinstein argued that a media shield should only apply to professional reporters. The same way that attorney-client and spousal privileges only apply to attorneys and spouses, she said, the bill shouldn’t grant a special privilege to “people who aren’t even reporters at all” and “have no professional qualifications whatsoever.”

Too broad of a definition could give protection to “hate websites, like that of the neo-Nazi organization the National Socialist Movement, or even Senate press secretaries,” Feinstein cautioned (which may be the first time those two categories of people have been identified as sharing an interest).

Two other provisions of the law cause some press freedom advocates to bristle: The so-called national security loophole and the exclusion of organizations like Wikileaks from receiving coverage.

Language that gives the government much greater discretion to compel testimony when the issue relates to matters of national security leaves reporters covering that beat unprotected, some say. Trevor Timm, executive director of the Freedom of the Press Foundation, told The Nation that since so many instances of journalists being compelled to reveal sources deal with national security, "this exception…tilts the playing field in favor of the government." Scott Armstrong, a veteran investigative journalist, said last month that the law effectively won’t cover national security reporters.

Cope, though, believes that’s overstating it. “We think that it’s a narrower exception than a lot of folks [do],” she told TakePart. In her estimation, a leak involving the national security beat doesn’t automatically trigger the exception; it only kicks in if the source or information in question could help prevent a future harm. In Cope’s view, Risen would be protected under the law since his revelation was about a program that has since been cancelled.

While the legislation does not mention Wikileaks explicitly, lead sponsor Sen. Chuck Schumer (D-NY) has said that Julian Assange’s controversial organization would not be protected under the law. But that doesn’t come “out of any legitimate policy analysis,” Harvard’s Hermes said, emphasizing the value of primary source documents in the Internet age, but he and other experts acknowledge that a bill won’t get through Congress without excluding the Wikileakses of the world, and a national security carve out. “As a public policy consideration, this [Wikileaks] exemption is a bad choice,” Hermes said.

With Risen’s case possibly heading to the U.S. Supreme Court, many see an urgency in passing a federal shield law. Other legal experts, though, think the bill could do more harm to journalists than good.

David Pozen, a professor at Columbia Law School and former Senate Judiciary Committee aide, argued that passing such a measure in and of itself needlessly validates the practice of subpoenaing journalists.

The danger isn’t in who or what is covered by the shield, Pozen said, but in normalizing the act of compelling reporters to testify. In his estimation, a federal shield law would not have prevented any of the recent controversial subpoenas—but rather provided the Justice Department with the legal backing for them. Cope disagrees.

Despite what the shortcomings they’ve identified, a number of media organizations— including Cope’s NAA, Reporters Committee for Freedom of the Press, and the Society of Professional Journalists, among others—have endorsed the bill.

“We’d rather have a bill that covers the vast majority of folks doing investigative journalism than put a stake in the ground” over one of the particulars, Cope said. “We want to focus on what good the bill will do.”

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