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.