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.

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.

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Eric Newton , senior adviser to the president at the John S. and James L. Knight Foundation, meets the congressional definition of a “covered journalist”