Let’s think about this definition for a moment. Consider a whistle-blower, A, who tells B of something nefarious going on at a hypothetical federal agency, which we’ll call the Internal Revenue Service. B in turn tells the world. Scandal ensues. Investigations, denunciations, calls for reform. As matters unfold, a prosecutor decides that his case requires the identity of the leaker. Should a subpoena be issued?
The statute, as written, would permit the subpoena if B is, say, a blogger who obtains no income from her writing, or a wealthy philanthropist who distributes a newsletter but derives no income from it, or a law student using the information as the basis of a project to be published in her school’s law review. One cannot make a serious case that any one of these forms of publication contributes less to public debate and the public good than the coverage of the same news on television or in a newspaper. A different distinction is necessary.
The obvious argument therefore has to do with the chilling effect — that is, intimidating professional journalists is more dangerous to public debate than frightening bloggers or philanthropists or law students. This is a scary reading of the First Amendment, which does not on its face divide free speakers into different classes — but that’s not the main problem with the argument.
The main problem is that the statute, by protecting only those who commit journalism professionally, would drive a fully informed and rational leaker to go to a reporter for a mainstream media organization rather than to a blogger or a law student. To which you might say: So what? Maybe it’s better that the leak be published in the New York Times or broadcast on CBS.
Maybe — but do we really want the government, as a matter of policy, making judgments about where leakers ought to be encouraged to leak? By raising the costs on others who would cover the news, the shield law in effect subsidizes the working press. It isn’t at all clear why this is a proper government function.
The shield law can be improved. There’s no good reason to limit its coverage to a person who “regularly” engaged in the spectrum of activities that it protects — because it is the activities, not their regularity, that are crucial to the functioning of the democratic process. An accountant who writes only a single op-ed article in her lifetime, and therein discloses what she was told by a confidential source, is potentially providing as vital a service as any working journalist.
And, certainly, there is no justification for the limit of coverage to one who engaged in these activities “for a substantial portion of the person’s livelihood or for substantial financial gain.” One would think that people who give information away free would receive, if anything, greater solicitude from government. The provision limiting protection to those who make money from disseminating information should be deleted entirely.
I have heard it said that a more broadly worded statute would never pass, not least because media companies might yank their support. Let’s hope this isn’t true, because if it is, it’s hardly an argument in favor of the Free Flow of Information Act. It would instead be evidence that the statute itself is an elaborate form of rent-seeking in the guise of protecting sources.
Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and the novel “The Impeachment of Abraham Lincoln.”