The Obama administration announced last week that it is throwing its support behind the press shield law that has been stalled in Congress since time immemorial. Critics insist that the administration, suddenly mired in scandal, is simply trying to curry favor with the news media, but the proposal deserves to be judged on its merits.
And on its merits, the shield law is a bad idea. Let me explain why.
I believe that the First Amendment is the single most important provision in the Constitution. Part of what makes it so is that it protects all Americans — not just journalists.
The avowed purpose of the shield law is to make it difficult for the government to compel testimony from journalists. It is self-evident that being forced to disclose confidential information would make it harder for reporters to do their jobs. In effect, the risk of compelled disclosure increases the cost of journalism.
A useful analogy is the case of NAACP v. Alabama, decided 55 years ago, in which the Supreme Court held that forced disclosure of membership lists would burden the freedom of association. This seems plainly correct. If all the world can know which organizations you join, your cost of membership is effectively increased. That, wrote the justices, the Constitution does not allow the state to do.
Very well. If compelling journalists to disclose their sources is analogous to compelling members of an interest group to disclose their membership, what’s wrong with the shield law? The answer, as the late Judge Bailey Aldrich wrote in a different context, is that “the statute is not too happily drafted.”
There are several versions of the shield law pending in Congress. The one that seems to have the most support is grandiloquently titled the “Free Flow of Information Act.” But this bill, much like the guidelines on which the Justice Department was supposed to rely before seizing telephone records of Associated Press reporters, is chock-full of exceptions — particularly for national security cases.
The statute, in any case, says only that the government can’t subpoena documents or testimony from journalists until it has exhausted other reasonable means of getting the same information. In a saner world, this would be a universal standard — but it probably wouldn’t be a significant change for the practice of journalism. Even in the absence of a shield law, most prosecutors are too savvy to go after journalists. The price can be too high. If a prosecutor does decide to try to pry a source out of a reporter, chances are he has indeed run out of other ideas.
Put otherwise, the protections themselves might change the status quo only a little. And there is reason to think that the shield law, even if it existed, would have offered scant protection to the AP.
But the rather limited effect isn’t the largest problem with the proposed statute. After all, the protections can always be strengthened. The larger problem is the class the bill would protect. The protection applies only to a “covered person,” and a covered person is defined with disturbing narrowness:
“A person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.”