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Journalist ‘shield’ – balancing openness, security
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director
10.07.07

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: gpolicinski@fac.org.


Related

Senate panel endorses shield law

By 15-2 vote, Judiciary Committee sends bill to Senate floor; meanwhile, Nancy Pelosi says she will bring similar House measure up for vote by end of year. 10.04.07

House votes to give journalists shield for confidential sources
Co-sponsor Mike Pence, R-Ind., says measure 'is not about protecting reporters, it's about protecting the public's right to know.' 10.17.07

Utah high court drafts journalist shield law
Proposal would make it difficult for lawyers, judges to force news reporters to reveal confidential sources. 12.15.07

Utah high court adopts broad privilege for reporters
New rule 'provides near-absolute protection for confidential sources,' says attorney for state media coalition. 01.25.08

Hawaii mulls enacting reporter shield law
State lawmakers are considering several bills that would protect reporters from being forced to reveal confidential sources, notes and recordings. 02.01.08

Shield law or no, protection of confidential sources uncertain
Proposed measures would offer only modest shelter for journalists who want to withhold identities of those who gave them information. 03.17.08

Ariz. TV station didn't waive rights under shield law, court finds
State appeals panel rejects tire company's bid to learn source of records used in news report on automobile safety, saying to rule otherwise would chill free flow of information to public. 03.27.08

Bush officials mount campaign against media-shield bill
In letters to senators, Attorney General Michael Mukasey, others say measure could harm national security, would encourage more leaks of classified data. 04.04.08

Hawaii Senate panel endorses reporter shield law
Judiciary Committee adopts version of bill favored by news media, giving journalists broad safeguards from being forced to turn over materials to courts, prosecutors or police. 04.07.08

Federal judge demands reporter's sources for spy story
Court wants to know who gave Bill Gertz information about case against engineer convicted of conspiracy to export U.S. defense technology to China. 06.02.08

Attorneys general back federal media shield
37 state officials sign on to letter; measure faces uncertain future in Senate as some Republicans strongly oppose bill allowing reporters to protect sources. 06.20.08

Justice Dept. to pay Hatfill $5.8 million to settle lawsuit
Deal may make contempt order and $5,000-a-day fines against USA Today reporter Toni Locy moot. 06.30.08

Lawmakers chide attorney general for opposition to shield bill
Michael Mukasey tells House committee that current laws limiting government's ability to force reporters to reveal sources are adequate. 07.24.08

Federal judge refuses to force reporter to reveal sources
However, grand jury plans to subpoena Washington Times' Bill Gertz to find out who leaked information for story on export-conspiracy indictments. 07.25.08

Media shield stalls in Senate
Republicans block measure, saying chamber should act instead on energy bill. 07.30.08

Protecting reporters' privilege?
By Alicia Armbruster Study finds current version of bill proposing federal shield law would solve key concerns among journalists trying to protect confidential sources. 04.12.07

Bowled over by toilet tirade ...
By Gene Policinski Really — a disorderly conduct charge for cursing at an overflowing commode in your own home? Also: journalist shield, fantasy baseball. 10.18.07

Libby’s legacy: The conservative case for a national shield law
By Michael Berry Prosecutors aren't just subpoenaing reporters in cases where national security might be compromised — they're going after reporters’ sources for stories on athletes’ steroid use and street protests. 01.18.08

Much is at stake in journalist-shield bill
By Gene Policinski A look at issues, settled and unsettled, in the proposed Free Flow of Information Act in the Senate that would protect the press from having to divulge confidential sources. 08.10.08

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