But the panel’s lawyers said the First Amendment defense has not worked in federal courts. Beginning with the Supreme Court’s Branzburg v. Hayes decision in 1972, newsgathering cases have gone against the press. In 2003, Seventh Circuit US Court of Appeals Judge Richard Posner wrote an opinion flatly saying reporters have no special constitutional privilege, period. In 2013, the Fourth Circuit Court of Appeals said the First Amendment did not protect the Risen.
“The courts have been rolling over on this thing,” Dalglish said. “I foresee more federal circuits doing what Judge Posner did … and the entire structure collapsing.”
Defining a journalist
Yet the same federal courts that have pushed back First Amendment protections for journalists will, under the shield law, be asked to make important decisions about who qualifies for protection. The very idea of Congress and judges defining the word “journalist” is controversial.
“You give us a definition,” Armstrong said, “and you’re beginning to paint us into a corner.” Yet the panel’s lawyers said the bill’s current definition is a good one. There are three ways you can be a “covered journalist.” First, you can work for an organization that collects and distributes news or information to the public, and be in the act of doing that during the case in question. Second, if you freelance for a news or information organization, or have worked for one in the past, or are a journalism student. Or third, if a federal judge says, in the interest of justice, you should be covered.
“Half our students will be creating their own businesses, not working for traditional organizations,” Dalglish said, “and the definition will allow them to qualify.”
At first, bloggers thought they weren’t covered, but proponents say they are. “If you write out bloggers,” Savage said, “you’re really writing out a huge chunk of how news media works … This is aimed at getting at legitimate bloggers with wide audiences.” What the law does not cover are organizations, like WikiLeaks, that publish raw government secrets directly to the Web.
But there’s no guarantee the definition won’t change. “They’ve done a remarkable job,” Armstrong said, “but it worries me. My motivation has a lot to do with the question of Congressional oversight, which I’ve considered a double entendre for some time.”
Will the law pass? The lawyers hoped so, and the journalists weren’t sure. Even if it does, Armstrong said, “reporters will go to jail.”
The value of talking
Armstrong believes getting the government to drop the lance is better than raising a shield. The way to stop the investigations is to approach the government to launch a dialogue that is equal on both sides.
“People forget, but in 2000 Congress passed an Official Secrets Act,” he said, “and we started very slowly and deliberately a media-initiated dialogue with the national security community to push them back and keep that at bay.” The secrets bill was vetoed. By 2011, however, the dialogue stalled “and things have not gone well since then.”
Such a dialogue convinces each side to respect the sources and methods of the other, he said. The national security community needs to value professional journalists, “people carefully thinking about what they are doing, how they are doing it, the accuracy of the information, and the sensitivity.”
Goldberg agreed. “The dialogue is incredibly more important than any law.”
Politics vs. journalism
In the 40 years since Branzburg, we’ve seen more changes than just digital ones. Many leading industry groups then demanded an absolute First Amendment privilege to avoid turning over their sources, notes, and outtakes. Now those same organizations will settle for a shield that’s conditional and may not help the reporters doing the toughest stories.
We need to listen to the shield law dissenters and run their op-eds next to those of the supporters; to consider reviving a First Amendment framework for newsgathering in the digital age; to think about the tradeoff of protecting some reporters but not all, and to watch for last- minute changes in the bill that narrow the definition of journalists. We need to consider Armstrong’s idea that a dialogue might nip investigations in bud, and find out whether young, digital-age journalists would actually sit down with the government.
Infighting has killed past shield bills. The organizations believe a united front will help secure a federal shield law. But we still need a better debate. Politically, it might be right to rally around the law. Journalistically, it’s wrong.