Does frustration with congressional gridlock run so deep that we now celebrate moments when the two parties come together to accomplish something totally unnecessary? That premise could be tested when Congress returns from recess and resumes work on a “shield law” for journalists. It’s an idea whose time may have come politically, but whose usefulness remains suspect — particularly when our Constitution’s First Amendment already offers the press unequivocal protection.
If measured by good intentions, the Senate’s “Free Flow of Information Act” has few peers. Its authors — Chuck Schumer of New York and Lindsey Graham of South Carolina — want to protect America’s journalists from testifying about their confidential sources in court. They’re concerned that allowing courts to force disclosure willy-nilly could have a chilling effect on the press.
The bill has lots of flaws, not least of all the difficulty of imagining anything that could possibly chill today’s aggressive media. Beyond the recent wrangling over whether New York Times reporter James Risen must testify in an investigation of leaks at the CIA, there were just two other high-profile cases in the past decade in which reporters were pressed to reveal sources to further federal criminal investigations. Most dramatically, in 2005, Judith Miller of The New York Times and Matt Cooper of Time Magazine were held in contempt for refusing to reveal sources to federal officials investigating the disclosure that Valerie Plame worked for the CIA. Under pressure, Cooper’s sources finally waived their confidentiality. Miller spent 85 days in jail.
More recently, the Obama administration disclosed that it had subpoenaed Associated Press telephone records while investigating national security leaks last year. That embarrassing revelation even prompted Obama to hastily change his position to support the bill. Although, in fairness, Senator Obama was for a shield law before President Obama opposed it before the Obama Justice Department admitted to combing through telephone records of the AP.
Unfortunately, Schumer’s bill wouldn’t have protected the AP phone logs. It gives the Justice Department up to 90 days to provide notification, but would not have prevented the overreaching collection of records. The Valerie Plame case is a bit more instructive. Under the proposed law, it appears that neither Miller nor Cooper would have been compelled to provide information. Miller would have avoided jail time, and Scooter Libby, the White House aide convicted on obstruction-of-justice-related charges, would have been protected.
The legislation doesn’t give reporters a complete pass; it contains a national security exception that, the Justice Department would likely claim, could apply in Risen’s case. The measure does force courts to determine that “reasonable alternatives” have been exhausted and sets specific standards for compelling disclosure in criminal cases. Therein lies a problem. In doing so, it establishes unique protections for different classes of information, and leaves it up to Congress to define what qualifies for special treatment. In contrast, under today’s precedent established by a 1972 Supreme Court ruling, judges simply weigh whether the public interest in law enforcement outweighs the journalist’s interest in protecting a source.
In both cases, the government determines circumstances under which journalists and sources are protected. But substituting congressional definitions for judicial judgment will hardly clear the air. More likely it will open the door to unintended consequences. By protecting and encouraging the use of anonymous sources, the law may encourage a cavalier approach to checking multiple sources or leaking sensitive information. It could also provide unwarranted protection to government or private-sector workers using anonymous leaks to undermine their supervisors.
Even more problematic, writing a law to protect “journalists” requires that Congress determine who fits the bill. As the Senate Judiciary Committee deliberated this month, the convoluted debate read like a Monty Python sketch. Bloggers might be journalists, but, Schumer insisted, “WikiLeaks and all those others are not protected.” Senator Feinstein pushed for a definition that required “real reporters” to draw salaries. The issue is by no means a small one. As originally drafted, the bill defines a journalist as someone having “primary intent to investigate events and procure material” to inform the public. That narrows it down to everyone.
Perhaps in their wisdom, Congress will eventually stumble upon a much simpler approach. Just amend the Constitution to read, “Congress shall make no law . . . abridging the freedom of speech or of the press — especially the press who earn salaries.”
Politicians shouldn’t choose which journalists warrant special protections, and which do not. Nor should they decide which national security secrets are acceptable to leak and which are not. We’re far from a crisis: Between 2007 and 2010 the Justice Department approved just 24 media subpoenas; only two involved confidential sources.
The system as structured isn’t perfect, but it works pretty well. No journalist is above the law, and judges can compel testimony if they believe the public interest is paramount. Congress should get back to what it does best: avoiding work on the problems that really matter.
John E. Sununu, a former Republican senator from New Hampshire, writes regularly for the Globe.