Much is at Stake in Journalist-Shield Bill

Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

There’s a delay in U.S. Senate consideration of a proposal to “shield” journalists from many federal subpoenas seeking disclosure of confidential sources.

Supporters now hope to get a vote after Congress returns from summer recess. The proposed law — the Free Flow of Information Act — was headed for a vote until it got caught in an unrelated procedural stalemate over energy policy. The House overwhelmingly passed a similar bill in October.

Congress gets to play outside during its recess, but we can use this timeout to sort out where all the sides — there are more than two — line up on Senate Bill 2035:

  • Supporters, who include Republicans and Democrats, say such shield-law protection is needed not just to protect reporters, but also to offer assurance to whistleblowers and others who give the public information about government or private misdeeds through those journalists’ work.
  • Opponents, including a variety of federal agencies, say the proposed law would make it difficult if not impossible to combat terrorist threats quickly, and thus would endanger national security. U.S. Attorney General Michael B. Mukasey also told a Senate hearing that he feared the law would weaken an administration’s power to safeguard classified information.
  • Critics of the current proposal include those who favor such a law, but object to any law that defines who is a journalist. This particular bill would shield those who (take a deep breath here if reading aloud) are engaged in “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
  • Supporters range well beyond just reporters and editors; nearly all state attorneys general have embraced the proposal (most states already have such laws). The bill has been endorsed by both major presidential candidates, Sens. John McCain, R-Ariz., and Barack Obama, D-Ill.

Unsettled issues include the question of whether bloggers are journalists. The common-sense answer is “some are, some aren’t.” Laws need precision or decision. But there’s no definition of “press” in the First Amendment. Even if the bill becomes law, with or without a particular definition, judges will have to decide to whom the law applies.

Then there are whistleblowers — those hardy souls willing to disclose government waste, unethical conduct and such, at the risk of job, reputation or more. At present, there’s no guaranteed protection in federal courtrooms for journalists who accept confidential information from such sources. Federal prosecutors and judges have shown an increased willingness to pursue whistleblowers’ identities, particularly in cases involving terrorism or claims of national security.

Such high-profile cases dominate headlines. But we also should be concerned about the potential to encourage or chill those who come forward on less-than-national-survival matters — issues such as drinking water or food safety, public-health statistics, fraud or abuse in road-building or errant law enforcement policies or practices, to name but a few.

The Senate proposal — like most compromises — offers something for many and likely completely satisfies none. The legislation does not shield spies, terrorists, crooks or eyewitnesses to criminal acts. Nor does the protection from subpoena apply in cases where officials can show there is imminent danger of death, kidnapping or serious injury.

But government officials would have to show that their concerns go beyond protecting a too-often-wielded “classified” stamp on a document, and involve a real threat to the nation’s security.

I suspect bloggers who want to be considered journalists could meet the law’s test — but should they have to? Do we want Congress defining even in a benevolent way what the Founders clearly did not?

It’s worth noting in passing that some say journalists should never use confidential sources, in the interests of improving accuracy and credibility. Others say confidentiality must remain a journalistic tool because without anonymity, many sources won’t ever speak to the press for fear of retribution and the public could suffer as a result.

A lot to think about during recess.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].