A federal shield law, potentially a slipper slope

May 29, 2013

The siren song of a congressionally drafted federal shield law has arrived to answer the news media’s cries for help.

I turn to the adage, “Be careful what you wish for.”

First, let’s deal with the standard argument that if the District of Columbia and 49 states (all except Wyoming) can have shield laws, why not the federal government?

One answer is that since most criminal and civil cases go through state courts, shield laws at that level are needed to prevent prosecutors or lawyers from automatically subpoenaing reporters who have covered events, talked to witnesses, gathered records and done work that those involved in such cases otherwise would have to do.

But states do not generate the same sort of national security and confidential-source criminal issues as those at the center of the contests between the media and the Justice Department. The Supreme Court made it clear in the 1972 Branzburg decision that the First Amendment is no protection for a journalist called to testify before a federal grand jury in a criminal case.

In recent decisions, some lower-court federal judges have indicated a path to some sort of common law privilege for journalists, but a federal shield law has over time seemed like a quicker route.

The late, great journalist Anthony Lewis, who wrote the book about the First Amendment, rightly said in 2007 during a panel titled “Are Journalists Privileged?” that “a wise federal shield law is difficult to draft.” During that panel at the Benjamin Cardoza School of Law, he cited as one “inescapable problem”: “defining who is a journalist.”

Lewis — and others — focused mainly on those hundreds of thousands of individuals who publish news, commentary and photographs on the Internet.

I have a different worry: that Congress in past federal shield law efforts has tried to regulate who the protected journalists will be by using more dangerous standards. The slippery slope of standards has involved such things as who the journalists work for or their organizational associations.

The White House last week asked Sen. Charles E. Schumer (D-N.Y.) to take the lead in developing a shield law similar to one he sponsored that passed the Senate Judiciary Committee in 2009. On the CBS program “Face the Nation” on Sunday, Schumer said he would work with a new bipartisan “Gang of Eight” on a bill that would require the government in each case to go to a judge who would balance the need to find a leaker against the journalist’s desire to protect sources.

But Schumer’s earlier effort excluded from being a journalist, or “covered person,” individuals on or “reasonably likely to be” on various government lists.

For example, it eliminated a person who is an “agent of a foreign power,” as defined by the Foreign Intelligence Surveillance Act of 1978. That definition would include a person working for “an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.”

The legislators apparently were after Al Jazeera, partially owned by the government of Qatar, and perhaps the Iranian government-owned news services. But wouldn’t that also mean journalists from the BBC, Agence France-Presse and some Russian government-owned services?

Other non-covered journalists were those “reasonably likely” to be working for groups on the State Department’s list of foreign terrorist organizations or Treasury’s Specially Designated Global Terrorist list, and anyone “attempting the crime of providing material support” to a terrorist group or anyone “aiding, abetting, or conspiring in illegal activity with a person or organization” on any terrorist list.

As I wrote about the first Schumer bill, what if it had been proposed in the 1950s, when Congress would have excluded from its journalist designation anyone associated with the Communist Party or liberal groups designated as fellow travelers? In the 1960s and 1970s, it probably would have excluded those associated with anti-Vietnam War groups or radical civil rights organizations.

Who would be added to such a list by a future Congress?

As others have noted, Schumer’s bill would not have prevented Justice from getting the Associated Press phone records or the e-mails of Fox News’ James Rosen. Perhaps it could have delayed things for months or years, but who would have benefited from that?

Another of my old objections to a federal shield law is that it results in media lobbyists going to Congress to seek a privilege from the lawmakers journalists cover. The attorney-client privilege in federal law and those granted clergy, doctors and social workers all arose out of judicial decisions, not from lawmakers.

And why are we seeking a federal shield law now? The leaker or leakers in the AP and Fox stories were not whistleblowers exposing government malfeasance. They passed classified materials in violation of criminal law. These journalists were witnesses to those violations and should be treated like other citizens.

National security reporters protect their sources and should take the same chances with the law as those who provide them with classified information. Max Frankel, former executive editor of the New York Times who appeared with Lewis at that 2007 Cardoza panel, put it this way: “The law is especially political and there is no law that we could write to address this issue, especially when you wave national security in front of the judges.”

He added that no judge could do the balancing between harm to the national security and informing the public, since “no one can anticipate the ultimate consequence of any given story.”

Frankel said, “At certain moments, if the country is panicked with fear, it may be willing to put a reporter or two in jail. So be it. The contest must go on. It is a political contest for which . . . the law has no answer.”

I’ll go along with Frankel: As he put it, “I trust the politics of this game to decide the issue in each generation of journalists.”

For previous Fine Print columns, go to washingtonpost.com/fedpage.

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