A shield for the press

A federal law to protect sources will maintain a check on a state known to abuse its powers

Written by New York Times | Published: June 4, 2013 3:03 am

A federal law to protect sources will maintain a check on a state known to abuse its powers

CONGRESSMAN Ted Poe and I are not what you’d call kindred spirits. He’s a shrink-the-government-then-drown-it-in-the-bathtub Texas Republican. He comes from a political tribe that regards the mainstream media as a hive of Bolsheviks. Yet,Poe and I see eye to eye on one thing. He is the main House sponsor of a bill intended to protect journalists from being compelled to give up information about their government sources,even when the sources have divulged matters of national security.

For Poe and quite a few like-minded conservatives,a law to shield confidential sources is not about pampering the press. It is about maintaining a check on a big government that has been known to abuse its powers.

Thanks in part to the outrage over two aggressive government leak hunts — the AP case and the electronic tracking of a Fox News correspondent — there is now a flicker of hope that Poe’s bill will become law. President Obama,as part of his professed intention of softening the security state he inherited and enhanced,has revived the idea of a federal shield law. A federal shield law has been a goal of news organisations for decades. Such legislation has passed the House twice with large bipartisan majorities,and in 2009 a version won the approval of the Senate Judiciary Committee — only to stall after the haemorrhage of classified documents from the anti-secrecy group WikiLeaks.

A lot of people I respect,including some eminent journalists,have questioned the idea that Congress should exempt reporters from the civic duty to give evidence. Critics complain that a sanctimonious press is quick to wrap itself in the First Amendment but often slow to acknowledge that some secrets are worth keeping. A closer look at the two cases currently fuelling media indignation suggests they have a point. I think the justice department had ample reason to find these particular leaks troubling. At the very least,both put enemies on guard. In neither case was the leak hunt launched to silence a whistleblower or hide official malfeasance; on the contrary,both leaks revealed intelligence agencies doing their jobs. And in pursuing the leakers,the justice department was doing its.

The question is whether the leaks justified such an extensive invasion of journalists’ activities,with no advance notice and no independent oversight. That is exactly the kind of dispute a shield law is meant to resolve. Before compelling a journalist to testify or surrender records,the government would be obliged to meet the journalist’s lawyers in front of a judge. The prosecutors would have to make a good case that they had no other way to find the leak,that they would not cast their net so widely as to intrude on other reporting operations,and that identifying the leak was more important than the public value of the story.

Sadly,the current Senate version of the shield law,which has been laboriously massaged to accommodate both media companies and secrecy hawks,has an intolerably large loophole for cases in which the government claims national security is at risk. That would leave the government with a free hand in genuinely notorious revelations,which would not have been disclosed without confidential sources.

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