When a Senate committee this month approved the “Free Flow of Information Act of 2013,” applause was heard from scores of media shield law supporters, from the Newspaper Association of America to the Reporters Committee for Freedom of the Press. To them, the news came as a relief after revelations the feds had secretly seized Associated Press phone records and labeled a Fox News reporter a criminal “co-conspirator” as an excuse to get his emails.
So perhaps it isn’t surprising that the AP story on the bill and newspaper coverage generally was unburdened by complexity: Long-overdue shield law advances; journalists to protect confidential sources and information. Yet magazine websites told a different story, one of a flawed law with holes that worry “even some supporters.” This raises a question: Shouldn’t the critics get more attention in the mainstream coverage?
An all-star lineup of industry groups supports the bill. They see it as the best step yet toward extending First Amendment freedoms into the newsgathering process. The critics, however, have been journalists who do the hardest stories, the national security stories. At an event I organized at the Newseum last week, PBS NewsHour anchor Judy Woodruff generously allowed one of them, longtime investigative journalist Scott Armstrong, to debate the rest of the panel.
“There’s not a national security reporter that I can find who supports the shield law,” Armstrong said, “because it won’t protect us. We’re going to get exempted out of it one way or another.”
The panel’s attorneys disagreed. Karen Kaiser, associate general counsel at the AP, Kevin Goldberg, counsel for the American Society of News Editors, and Lucy Dalglish, dean of the Phillip Merrill College of Journalism at the University of Maryland, all said that the Senate version of the bill has a clause to, as Dalglish put it, “give you a shot at getting rid of a national security-related subpoena.”
“I guarantee you,” Armstrong countered, that “they will find the exceptions within the prospective shield law to continue to investigate … and it’s being investigated that destroys the trust and credibility we have with our sources.”
The bill may not help national security cases, Dalglish said, but will help with “the bulk” of federal subpoenas. (Shield laws do seem effective in the states. All but Wyoming have some form of protection, and one study said 75 percent of the 823 reported subpoenas in the year 2001 were quashed. Few cases are federal. The Criminal Division of the Department of Justice said the attorney general allowed only 89 media subpoenas in the 10 years from 2001 to 2010.)
“At its core,” said panelist Charlie Savage of The New York Times, the federal media shield bill “moves from the attorney general’s office to a judge’s chamber the decision: Are we going to issue the subpoena or not? … That alone is a deterrent to frivolously or overly broad requests and it may in fact have a significant change in how often such a subpoena is issued.”
Leak probes are the ‘new norm’
Oversight is needed. Guidelines or not, the attorney general’s office in the AP and Fox cases did not provide advance notice. New AG rules outlined on July 12 at the president’s request will help by, among other things, dissolving the notion that a journalist who hears a classified leak is a criminal accomplice. But the Justice Department has refused to withdraw the subpoena to James Risen, who for years has declined to name the source of his account of a failed CIA plan to infiltrate Iran’s nuclear program. In the end, Kaiser noted, the attorney general’s guidelines are just policies, not enforceable, “so a shield law is a necessary complement.”
Though President Obama revived the long-sought federal shield law in response to the mishandling of these high-profile cases, there is no guarantee a law with a national security exemption would have helped Risen, nor the AP on its foiled terror plot story, nor Fox on the North Korean nuclear test.
More cases are emerging because it’s never been easier to leak or investigate leaks. Reacting to a new generation of digital whistleblowers, like Chelsea Manning, Armstrong said this administration began to treat all leaks “as if they were espionage cases.” There have been seven leak cases under the Obama administration, and only four in all of history before; Savage called challenging informants the “new norm.” A corner has been turned, he said, and “it’s not clear that there can be a policy change that can take us back to the old world.”
Still, shield law opponents object to Congress making laws about the press when the First Amendment begins with the words “Congress shall make no law.” They worry we are trading a large constitutional shield for a small legislative one.