Federal shield law
Thirty-two states, including Nevada, have “shield” laws that protect journalists from being forced to disclose their sources, recognizing that the First Amendment’s guarantee of a freedom to publish is worth considerably less if sources are afraid to talk to reporters in the first place.
But there is no such protection against reporters being forced to reveal their sources under federal law.
This week, despite objections from spy chiefs and federal police officers, a U.S. Senate committee decided to push ahead with legislation shielding reporters from being forced to reveal their sources in federal court.
Director of National Intelligence Mike McConnell and Brian A. Benczkowski, principal deputy assistant attorney general, sent letters objecting to the bill being considered by the Senate Judiciary Committee.
The bill has support from more than 50 news organizations, and is the result of a compromise between Sen. Arlen Specter of Pennsylvania and Richard Lugar of Indiana, both Republicans, and Democrats Charles Schumer of New York and Christopher Dodd of Connecticut.
Sen. Schumer Thursday advanced the theory that the current bill balances safety concerns against our freedoms.
“Central to security is the ability of the government to get information that will bring a criminal to justice and prevent harm to our nation,” he said. “Central to freedom is a vibrant and active press, which can gather news from all sources, including confidential ones.”
But Mr. McConnell and Mr. Benczkowski warned that making it harder for the government to track down leaks could endanger national security.
The bill “would impose significant limitations upon, and in some cases would completely eviscerate, the ability of federal prosecutors to investigate and prosecute serious crimes, while creating significant national security risks,” Mr. Benczkowski complains.
Really? Even assuming the only method our vast federal law enforcement apparatus has to learn about ongoing crimes is to read about them in the newspaper, Mr. Benczkowski would then have us believe the only route open to his ilk to investigate these newly revealed crimes is to call in some ink-stained wretch and ask him who he’s been talking to?
If the alternative is for sources to keep silent in the first place, out of fear an “un-shielded” reporter will be forced to “turn them in,” how does that help “federal prosecutors to investigate and prosecute serious crimes” of which they would apparently remain in ignorance without the reporters’ help?
If this sounds like nonsense, it’s because it usually is. Prosecutors frequently call in reporters to ask them about matters of which their own (far better staffed and funded) investigators are already fully aware. An example is the recent federal prosecution of vice presidential Chief of Staff I. Lewis “Scooter” Libby. Prosecutors already knew who told what to whom. In fact, they had already determined no crime was committed, at all, in revealing that Valerie Plame was a CIA operative. So why was Mr. Libby still grilled? Why were reporters for The New York Times and other publications threatened with jail time for refusing to disclose their sources? Why did Judith Miller spent 85 days in jail?
Because the real goal was not to discover who had committed a crime. The real goal was political punishment for the supposed “crime” of talking to the press.
The opposition to this law has little to do with prosecutors lacking any avenues of investigation other than peering over a reporter’s shoulder. It has a lot to do with the recurring desire to chill the ardor of whistle-blowers to “spill the beans” over government corruption and wrongdoing by letting them know any reporter they talk to can be thrown in the clink till he or she gives up that source’s name.
Besides, the current bill contains five exceptions to answer the critics’ objections.
Sources would have to be disclosed if it is necessary to prevent imminent and actual harm to national security or to prevent imminent death or significant bodily harm. Also, disclosure of certain trade secrets, individual health or financial information would not be protected.
In the end, this is about protecting a free press as a means for the citizenry to learn about government wrongdoing — the main reason the founders guaranteed us a free press in the first place.