President Barack Obama came to office promising openness and instead mounted an unprecedented campaign against anonymous leakers and the journalists who rely on those sources. A shield bill under consideration in the U.S. Senate has its flaws, but it may be better than no federal protection. The challenge will be for senators to refine the legislation when they return from their August recess.
Congressional action wouldn't be needed if all federal courts recognized a reporter's privilege under the First Amendment. Giving journalists legal protection from compelled government disclosure is essential for the free flow of information. But the federal courts have failed to establish this right for professional news gathering. A federal appeals court last month rejected efforts to shield New York Times reporter James Risen from being forced to testify on the source for his book that reported on efforts to damage Iran's nuclear program.
That leaves it to Congress to follow the lead of 40 states, including Florida, that have statutes providing at least some protection for reporters facing subpoenas. Bipartisan anger over high-profile snooping by the administration is fueling a call for federal protections. The Justice Department secretly seized the phone records of 20 Associated Press phones in an attempt to find the source who leaked information regarding a foiled terrorist plot in Yemen. AP wasn't notified for a year. The Justice Department also secretly seized the phone and email records of James Rosen, a Fox News reporter, in an investigation of a State Department leak of information about North Korea.
Outrage about these investigations prompted Attorney General Eric Holder to tighten internal rules for when the Justice Department may go after reporters' information. Now President Obama and Holder are calling for Congress to pass a journalist shield law.
The Senate bill gives journalists protection from having to respond to a federal subpoena except when all other reasonable ways of obtaining the information have been exhausted. In general, the law would give journalists the right to notice and the opportunity to be heard before their testimony is compelled and before their communication records are seized. But there are broad exceptions for national security that could erode those protections.
Another legislative challenge is defining who is a journalist entitled to the shield in this age of digital media when anyone with a website and a sponsor can claim the mantle. An initial effort at crafting a definition already has raised concerns. When the Senate Judiciary Committee debates the issue this fall, senators will have to revisit the difficulty of covering legitimate journalists without including too many who have other agendas.
To hold the government accountable, the public needs information that reporters can often obtain only from confidential sources, particularly when dealing with federal government officials and national security. Whether the story is on the administration's drone strike policy or what is happening to the prisoners at Guantanamo, reporters should not have to risk going to jail to get the truth, inform the public and protect their sources. A federal shield law would be no substitute for First Amendment rights, but it would be legislative recognition of those protections and this nation's commitment to them.