The government has ways to make you talk, as writer James Risen was reminded when the U.S. Court of Appeals for the Fourth Circuit ordered him last week to testify against the Central Intelligence Agency source who told him about covert operations regarding Iran’s nuclear facilities.
The court was correct that, as it stands, federal law contains no shield for reporters of the kind that exists in 49 states and the District of Columbia. But it should — not because journalists are a special category, but because anyone who publicizes information in the public interest is fulfilling the true purpose of the First Amendment. Without protection from coercive subpoenas, we are all less than free from an executive branch that has every incentive to enforce secrecy and none to promote disclosure.
The usual arguments in favor of shielding journalists emphasize the importance of a free press to a healthy, functioning government, and they account for the near-universal adoption of shield laws by the states. Two reasons are supposed to explain why the federal government hasn’t followed suit: the greater secrecy required by national security and the difficulty of figuring out in this day and age who should count as a journalist entitled to the privilege.
The national-security argument falls apart on closer examination. A government employee who, like soldier Bradley Manning, violates his oath and the law by stealing secrets can, of course, be prosecuted. But by settled Department of Justice convention, anyone who publishes that stolen information subsequently is protected by the First Amendment unless he or she directly colluded in the theft itself. Once that free-speech norm is accepted, we allow that the cost of leaks to national security is one we are prepared to pay.
Requiring the reporter to rat out the source won’t realistically compromise national security by discouraging leakers. Subpoenas of reporters have been a possibility for years, yet leaks haven’t proliferated. Indeed, the trend of modern leakers is to reveal themselves, as National Security Agency contractor Edward Snowden did, not to hide behind the people who brought their secrets to the world. Even former vice- presidential aide Lewis “Scooter” Libby, when faced with prison time, eventually agreed to let New York Times reporter Judith Miller testify that they had discussed the outing of CIA agent Valerie Plame.
The worry that a federal shield law would protect everyone, not just reporters, from subpoena is more serious – but it turns out to prove why a shield should matter to everyone. It’s absolutely true that the institutional identities or guild norms that once tenuously held together a category known as “journalists” have broken down. No politician mewling to supporters about the 47 percent who won’t vote for him is ever going to forget it again. That means a federal shield law couldn’t protect only “journalists,” but would also have to draw a line based on function, not profession.
And the function of the free press is, conveniently enough, independent of journalistic professionalism. It is, simply, to make information and opinion public so as to enable people to form their own judgments. This goal would make perfect sense to our Founding Fathers, who had never heard of journalistic ethics and would have found the idea risible if they had. Their newspapers accused sitting presidents of scandals, including Thomas Jefferson, whom they said fathered illegitimate children with Sally Hemings, a black woman enslaved by the author of the Declaration of Independence. (Oh, wait, that turned out to be true.) The lonely pamphleteer whom the First Amendment was designed to protect from prior restraint was the precursor of the crazy blogger you love to hate, not of Walter Cronkite.
Under our Constitution, then, who promotes the value of supervising government through public opinion? Not just journalists, but everyone with information or an opinion to share. Anyone publishing information for the public interest is protected by the First Amendment — and that same anyone should get the protection of a shield from subpoena.
But wait, say hardheaded opponents: If we can all avoid subpoena by publicly announcing the secret criminal activity we know about, how will the police be able to do their jobs in prosecuting criminals? Just fine is the answer. If Whitey Bulger tells me that he killed my neighbor, my choice to publish that fact on the Web or not is going to be shaped by my desire to avoid getting whacked, not to avoid getting subpoenaed. If I keep a fact secret, then I’m not publishing it in the public interest — and I shouldn’t be able to rest on the First Amendment to avoid subpoena. In a federal-shield world, it might be a little harder to prosecute leakers, but the state’s extraordinary tools of investigation will still be there, and if the government really cares, it will be able to get its man. (No, Attorney General Eric Holder, that isn’t an endorsement of collecting all the news services’ phone records.)
It would be great if Congress would take these arguments on board and pass the shield. But the odds are against it, primarily because any executive would be inclined to veto legislation that weakens the power to prosecute. Herein lies the basic structural reason a shield is needed: It provides a tool for us, the public, to supervise and evaluate the work of a presidential administration that is supposed to be working for us. The keeping of secrets is a necessary element of exercising power; like all such powers, it needs to be limited to protect the liberty of citizens.
The president’s incentives and Congress’s reticence pass the buck to the U.S. Supreme Court, to which Risen will surely appeal. In its 1972 decision in Branzburg v. Hayes, the court declined to infer a shield. More than 40 years later, the world has changed, as the court recently noted in striking down parts of the Voting Rights Act. We are all journalists now — and that is a reason to limit the president’s power to make us talk, not to reaffirm it.
Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist.