Journalist ‘Shield’ – Balancing Openness, Security

Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

When journalists ask Congress for a “shield law,” it’s fair for citizens to ask exactly what that law would “shield,” and why.

Such a proposed law would give journalists a measure of legal authority in many instances to keep secret the names of news sources from federal prosecutors and others. The Free Flow of Information Act 2007 will be considered by the U.S. Senate, following approval Oct. 4 by the Judiciary Committee. The House already has approved its own version.

Many journalists maintain such a shield law is needed at the national level so whistleblowers and officials and others will continue to provide information to the public via the free press about policies, programs, abuses and crimes that otherwise might go unreported and unknown.

But the idea of a shield law raises basic questions for Americans outside the journalism profession and government offices:

  • Does a shield law mean government officials constantly will be thwarted in protecting national secrets?
  • Does it mean journalists would be set up as a special class of citizen, to whom some laws apply and some don’t?
  • Who gets to decide who is a journalist?
  • What if a spy claims to be a reporter when found to have received classified information — can we prosecute him or does he go free?

Some federal intelligence officials objected that the Judiciary Committee was even considering a shield law. Brian A. Benczkowski, principal U.S. deputy assistant attorney general, said in a letter to the committee that a shield law would, in some instances, “eviscerate” the ability of federal prosecutors to investigate and prosecute serious crimes and create significant national-security risks.

But under the Senate proposal, journalists would not have a shield if they were eyewitnesses or participants when a crime was committed, or if there were an imminent threat to life or national security. The government or a plaintiff in federal court would have the opportunity to prove that the information sought was vital to an important case, that the information could be obtained no other way and that there was a compelling public interest in its disclosure.

Spies would not get a “free pass”: No protection is extended to those gathering information for a foreign power. And an independent judge would consider whether we as a people would suffer more harm from keeping the source’s identity a secret than disclosure would cause the journalist and source — and perhaps more important, whether any particular case involved national security or just political or bureaucratic job security.

The latest version of the bill also abandons an attempt to define a journalist as one who earns money in the profession, in favor of a simple statement that those covered must be engaged in the regular dissemination of information to the public. This definition is much more in line with the First Amendment, which attaches no income, circulation or advertising definitions to a “free press.”

At the moment, there is no balance in federal courts on the issue of confidential sources for journalists — even most First Amendment advocates would concede that federal authorities hold ultimate trump cards: subpoenas, particularly when driven by a grand jury investigation into criminal activity. But there’s no question that the public good has been served many times: for example, by whistleblowers’ being able to speak of government waste and corruption without fear of losing their careers.

Our society is called upon to balance various legal rights in myriad ways: The fair-trial rights of defendants vs. the public’s right to justice. Our expectations of privacy vs. information needed for public health or safety. The right to speak vs. the need for public order.

Every state except Hawaii and Wyoming has either a shield law or common law that protects reporters and editors in state courts — obviously some kind of balance has been struck with regard to effective enforcement of state laws and the public’s need to know.

No shield law is or will be a perfect solution to the concerns raised by either a free press or government officials charged with protecting public safety and national security. And the proposed law doesn’t speak — and shouldn’t — to yet another issue, one of journalistic ethics: overuse of confidential sources that also masks the public’s right to know which government official is speaking or leaking.

But striking a reasonable balance between citizen safety and informing citizens about how their government is really operating would seem to serve the interests of democracy without “eviscerating” either the First Amendment or national security.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. E-mail: [email protected].