Photo by Alex Wong/Getty Images for Meet the Press
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 FBI 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.