Disappointing news today from the New York Times’s Charlie Savage:
The Obama administration has told lawmakers that it opposes legislation that could protect reporters from being imprisoned if they refuse to disclose confidential sources who leak material about national security, according to several people involved with the negotiations.
The administration this week sent to Congress sweeping revisions to a “media shield” bill that would significantly weaken its protections against forcing reporters to testify.
As Savage notes, Obama had been a co-sponsor of the bill while in the Senate. I’ll hopefully have more on this shortly.
UPDATE: Take a trip in the WABAC Machine, and see how Obama used to sing a very different tune on whether or not judges should oversee and approve journalist subpoenas sought by the executive branch.
What I haven't heard yet is a good case FOR the shield law. I submit that there is no need for a law that supposedly "protects" people who are designated "reporters."
Number one, there is already substantial protection in the First Amendment for a journalist to protect sources. Media business organizations don't like is the cost of litigating each case of source-protecting. But that's hardly a good reason for passing this kind of law, bestowing special protection for an ill-defined, ever-changing class of people. Be careful what you wish for.
Number two, to pass such a law, we must define "journalism" and "journalist." How are you going to do that? Presently, the Senate version of the bill would not protect Thomas Paine. It would not protect Marcy Wheeler. It would not protect Josh Wolf. It would protect Chris Cillizza and Mike Allen but would not protect Digby. It would protect Glenn Greenwald but would not protect John Cole.
It would not protect Izzie Stone or his granddaughter Aimai or John Aravosis, but it would protect the quote-fabricator Dana Milbank and Republican operatives Karl Rove and Dana Perino and CNN's torture advocate Fran Townsend. It's a dangerous thing when a group of politicians, along with the Media Big Boys, who spend good money to buy consideration, go to define a "journalist" and "reporter."
Number three, if one MUST pass a law, which I do not grant, the law should protect the piece of journalism, not a journalist. Journalists cannot be trusted with , and shouldn't be granted, special protection in the law. It gives them leave to form alliances to protect sources, as we saw in the Libby case and now with Walter Pincus and his CIA sources. The law of unintended consequences.
It is all very well to have this lofty, idealistic view of reporters "on the front lines" "holding people accountable" and "afflicting the comfortable" and all that balderdash, but you know, as we all know, the reality is bitingly different. Most "journalists" are not engaged in the practice of "holding people accountable" but of doing on of two things: a) reporting to the public on actual events of the day, adding context and background, or b) transmitting and disseminating their sources' messages into the public sphere. And I submit that they don't need protection in the law to do that. It is the "b" journalists who think they need protection, and are least deserving of it.
How about it, Mr. Hendler. Can you make a case for the shield law?
#1 Posted by James, CJR on Fri 2 Oct 2009 at 04:32 AM
James:
Thanks for your comment. But I'm afraid you display some mistaken impressions about the state of the law as it stands today, and what exactly the proposed legislation (which has already passed the House, by the way) would do.
First off, the First Amendment's impact on a federal reportorial privilege is unclear and uneven across the country. The only time the Supreme Court has considered the issue (Branzburg v. Hayes, 1976), they determined in a somewhat muddled 5-4 decision that the Constitution didn't protect reporters from grand jury subpoenas. (And who knows if the decision would be as remotely as close with the very different bench we’ve got today.) While a majority of federal appellate courts have found some version of the privilege tucked in the First Amendment, not all have. So if you are journalist in North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, Arkansas, Wisconsin, Illinois, Kentucky, Tennessee, Michigan, Indiana or Ohio, the Constitution’s protection is murky at best. Clarifying the situation, as the bill would undoubtedly do, strikes me as a worthy goal in itself.
Secondly, I’d invite you to look at the Free Flow of Information Act’s definition of journalism, which I’ll reproduce in italics:
The term ‘journalism’ means the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.
It’s hard to see how that definition—which says nothing about being an employee of a “mainstream” news organization or any such thing—wouldn’t include Thomas Paine, I.F. Stone, Marcy Wheeler, Josh Wolf, or most anyone else you named. The definition wisely defines journalism as an act, not a profession that requires employment at a newspaper or T.V. station, or credentialing by a government body or semi-official trade association. Certainly the definition will be tested by some close calls (I’ll tip my hat to your example of Karl Rove). But sorting that out is what the courts are for, and in my mind letting that vagueness, which is pretty much inherent in any new law, stand in the way of a worthy goal would be to miss the forest for a hypothetical tree.
Yes, James, there are hacks out there, and a lot of unsavory confidentiality is produced in the name of going along to get along, cultivating sources, and the like. I’m with you there. But I don’t see how having the judiciary monitor and approve the government’s requests to subpoena those engaging in journalism would do anything but put an independent check on what even the Justice Department, through the promulgation of its internal guidelines on the matter, has acknowledged is a dangerous arena.
I’d add two more things. A strong majority of states—36—have some version of a shield law. Another 13 have rulings from their courts establishing something akin. As far as I know, things seem to be going o.k. out there in the laboratories of democracy.
But most importantly, the proposed legislation does nothing to prohibit a judge from forcing testimony from a journalist—in other words, it’s not an absolute privilege. The law merely requires that someone outside of the executive branch weigh in, and make sure that a requested subpoena meets a series of commonsense tests. It’s just a check and a balance.
#2 Posted by Clint Hendler, CJR on Fri 2 Oct 2009 at 11:21 AM
You make some very good points, Clint.
I have no problem, personally, -- and I have no background in law -- with your definition of journalism. I'm a staunch defender of the First Amendment and that includes the Press clause. There are a number of troubling aspects about the bill as written but let me focus on Section 4 (2):
(2) COVERED PERSON- The term `covered person' means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public[okay, so far, so good, but...] for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.
There's your Karl Rove-Marcy Wheeler paradox, to say nothing of Thomas Paine. This language cannot stand. This language would exclude some of the most important journalism in America today, while protecting some of the very worst of the worst political operatives, by virtue of having landed cushy and comfortable positions with the likes of CNN, Fox News, Washington Post. This cannot be allowed. It cannot even be constitutional. I am interested in your thoughts about this section.
I am also troubled by what seems to be your misunderstand of this bill.
The law merely requires that someone outside of the executive branch weigh in, and make sure that a requested subpoena meets a series of commonsense tests. It’s just a check and a balance.
I dispute your characterization. No. It isn't and no, it doesn't. Number one, by executive branch, do you mean the DoJ? Actually, this bill HELPS the DoJ by limiting litigation about source protection, and by compelling testimony by even so-called "protected" persons. The bill would actually save DoJ time and resources. In other words, they LIKE it. And that should trouble you.
I thought we were talking about "compelling testimony" and not "protection from grand jury subpoenas." Different things. One can be subpoenaed and claim privilege, as is done now. I have no problem with journos being subpoenaed and be compelled to show why they should have privilege. This, because of the corrupt nature of national journalism, is a better path than giving blanket protection to people like Karl Rove and Fran Townsend, while forcing unpaid journalists like Josh Wolf and Digby into court to litigate privilege.
Thirdly, this troubles me:
SEC. 2. (a) Conditions for Compelled Disclosure
(3) (D)(i) disclosure of the identity of such a source is essential to identify ... a person who without authorization disclosed properly classified information and who at the time of such disclosure had authorized access to such information; and
(ii) such unauthorized disclosure has caused or will cause significant and articulable harm to the national security;
Well, I have no problem with agents who cause significant and "articulable" harm to the national security. But what is that? We are beginning to see, leaking out of the deep recesses of the secretive Bush Administration, what they had wrought under the auspices of "national security." Andrew Sullivan is on that subject once again. Now one might presume that Mr. Scott Shane's leaky sources, or Dana Priest's leaky sources, or Bob Woodward's leaky sources, would not be compelled disclosures. Or would they? The language above is under the heading of SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS. Nope, it appears that even the protected Mr. Shane, let alone Izzy Stone, would be compelled to disclose their sources IF the case was made for "national security." That's quite a big loophole, wouldn't you
#3 Posted by James, CJR on Fri 2 Oct 2009 at 01:08 PM