The repeated collisions last spring and summer between the press and the Obama administration over leak investigations left both sides bruised. Attorney General Eric Holder faced outrage over the Justice Department’s broad grab of AP phone records, its naming of Fox reporter James Rosen as a potential criminal, and its determination to force New York Times writer and author James Risen to testify against the former CIA agent the government is prosecuting for allegedly leaking secrets to him. Most of the fury came from the press, which has been sounding the alarm over Obama’s unprecedented number of leak investigations (eight compared to three for all previous presidents, with a new guilty plea in the case that involved the AP phone records). To pacify the critics, Holder promised support for a new federal law that would shield reporters from having to reveal information about their sources and testify against them.
Congress has considered bills like this multiple times over the last 10 years, only to let them die. This time, a media shield bill (called the Free Flow of Information Act) has passed the Senate Judiciary Committee. Most media organizations are supporting it as “a good, if imperfect, piece of legislation that will serve journalists and journalism well,” as the Online News Association puts it. On the other side is Matt Drudge and other critics who don’t want the government to define who is and isn’t a journalist. Drudge’s approach, attractive at first glance to First Amendment zealots, is utterly unpragmatic. This bill is both as good as the press is going to get and much better protection against testifying than what we currently have in federal court—nothing.
There are two bones of contention here. The first is the scope of the protections offered to covered journalists. The government will still win if it can show that the information it seeks from a journalist would help it mitigate an act of terrorism or other harm to national security, or that “national security interests” outweigh the “public interest,” for newsgathering, of allowing a journalist to keep his or her promise of confidentiality. This disappoints some in the press, who would allow journalists to invoke the shield against testifying any time they’ve promised confidentiality to a source. But there’s no way Congress would pass such a blanket shield law. Everyone who claims to be out reporting would claim the right to duck testifying every time they say a source went off the record. That’s not how shield laws work for other groups. They’ve always been narrower. For example, spouses don’t have to testify against each other—but that doesn’t apply to partners who live together, or after a divorce. Lawyers don’t have to testify against their clients—except when the client is trying to get away with fraud or a crime, or in the event of a few other telling exceptions. Nobody gets a blanket exemption from court orders.
The First Amendment doesn’t say otherwise—not as courts currently read it. The Supreme Court refused to recognize a privilege against testifying based in the Constitution back in 1972. Some federal courts carved out a qualified right not to testify nonetheless, “but this trend has halted in recent years, leaving journalists completely unprotected at the federal level,” as this helpful piece in the Yale Law & Policy Review explains. If anything, the protections that had existed have been receding: In ruling against James Risen in July, a federal appeals court said he had no more right than anyone else to refuse to give evidence against his alleged source, former CIA agent Jeffrey Sterling.
Would the proposed shield bill keep Risen out of the witness box? Kevin Gosztola took a thorough crack at answering that question on Firedog Lake. He worries that the answer is no, because of the national security exception. Kurt Wimmer, general counsel for the Newspaper Association of America, says the opposite—Risen would be protected, in his view, and the bill would also have prevented the government’s grab of the AP phone records and the subpoena of James Rosen. My own take is that the bill leaves it up to judges to choose between the potential harm to newsgathering from compelling testimony, and the potential harm to national security from not compelling it. And again, that’s as good as journalists are going to get. Update, 2:45 p.m.: I just got an email back from Wimmer, who says that the national security exception “is incredibly narrow—it only applies if the government can prove that the testimony will prevent a FUTURE act of terrorism or national security incident.” He asks, “how does DOJ win this test when it’s just seeking to confirm the source for an eight-year-old leak that has no relevance to any current security interest?”
The second sticking point is the bill’s definition of “journalist” or “covered journalist,”—laid out in a compromise amendment by California Senator Dianne Feinstein. Drudge and others are outraged that the bill defines journalists to exclude certain kinds of people and institutions. The bill would protect those who publish “news or information,” for any “news website, mobile application or other news or information service” or a “magazine or other periodical, whether in print, electronic, or other format.” You don’t have to be working for pay. The word “blog,” isn’t in there, but that should be OK, because courts have counted blogs as a kind of periodical. That’s been the case in California’s version, where the media shield is actually enshrined in the state constitution, and the federal bill adopts similar nice broad language. (Overall, 49 states have shield laws, but many of them use narrower definitions.)
To qualify for the shield in the proposed federal law, you also have to go out and act like a journalist—in other words, you have to intend to gather material so you could publish it, in some form or fashion. And that requirement is fair, too. If you want a court to let you out of testifying because you’re doing the work of a journalist, then you should have to actually do that work. You’re also covered if you used to work for a news organization (for one year in the previous 20 or three months in the previous five) or if you’re a student journalist. Last, but important: A judge can decide to cover someone else as a journalist if that’s “in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.”
The bill does define journalist for the purposes of the shield—there’s no way to get around that. This is not the same as a licensing scheme. If a federal agency ever tried to use the definition in the shield law to say who counts as a journalist for some kind of other privilege or benefit, it would never hold up in court.
A bigger flaw in the bill: It bites at WikiLeaks: The bill leaves out any person or entity whose “principal function: is “to publish primary source documents that have been disclosed” without authorization. (Also, foreign powers and their agents and terrorists.) This is the part of the bill I’d strike if I could. WikiLeaks isn’t traditional journalism, but it played a big watchdog role by publishing the thousands of documents Chelsea (formerly Bradley) Manning gave it. But it’s not worth killing the bill over this clause. It would be the kind of stand for principle that makes the perfect the enemy of the good. Maybe the next WikiLeaks actually could be covered, by doing more editing, so that it’s not just about document dumps. And think of all the journalists who will benefit from the law’s shield. Society of Professional Journalists President David Cuillier told U.S. News that the law would help “hundreds” of journalists “slapped with subpoenas each year for various records.”
Those journalists include bloggers like Josh Wolf, who shot video of a protest against capitalism in California. During a criminal investigation of some of the protesters, prosecutors demanded the video, and Wolf refused to turn it over despite a court order. He spent 226 days in prison in 2006. That’s the kind of shameful outcome a new federal shield law is designed to avert.
Correction, Nov. 25, 2013: This article originally misidentified Jeffrey Sterling as a former FBI agent, he is a former CIA agent.