A decision by the U.S. Supreme Court last week to blithely ignore the First Amendment rights of journalists and their essential need to protect confidential sources makes it more necessary than ever for Congress to enact a federal shield law.
The action involves a confrontation between the media and the Obama administration in the case of James Risen, a New York Times reporter facing jail for refusing to identify a confidential source.
The Risen case began when the Justice Department issued a subpoena seeking information about his source for a chapter of his 2006 book, State of War. The Obama administration, which has pursued leaks aggressively, filed briefs contending that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”
Shield laws in 48 states, however, have found ways to deal with this difficult question in a way that satisfies both the state’s interest in pursuing criminal activity and the public’s interest in ensuring robust coverage of government activity and possible misdeeds.
The existence of laws at a state level implicitly recognizes that without the ability to promise confidentiality to sources, reporters are denied an essential tool of their trade. Confidential sources in government are always reluctant to come forward. The absence of a shield law that protects them and reporters they communicate with hardens that reluctance.
The federal government is loath to extend a similar blanket guarantee of protection, contending that its obligation to protect national security makes it different from the states.
A well-crafted shield law, however, would recognize the difference between cases of extreme and urgent sensitivity — when journalists would have to cooperate — and instances when the government merely seeks to cover up embarrassing or inconvenient disclosures with no genuine security implications. That is information the public needs to have.
In recent days there has been positive movement that suggests now is time for supporters to step up their activity. House members voted 225 to 183 late last month to approve an amendment to an appropriations bill that would bar the Justice Department from using funds that would “compel a journalist or reporter to testify” about confidential sources.
While this action is welcome as a sign of sentiment among a majority of lawmakers, it is not an adequate substitute for a well-thought-out solution that strikes a balance between the freedom to report important information and national security. Nor does it grapple with the issue of who can claim protection as a journalist.
The amendment would not be permanent, since funds are appropriated for only one spending term.
Last September, the Senate Judiciary Committee approved legislation that contains most of the essential elements of a robust protective measure, with bipartisan backing. Then the bill went nowhere. A threatened filibuster has kept it from coming to a floor vote.
In the interval, Attorney General Eric Holder has met with representatives of the news media and revised Justice Department regulations to make it harder to issue a subpoena for a reporter’s notes. “As long as I'm attorney general, no reporter who is doing his job is going to jail,” he said recently.
Ultimately, we should not have to rely on the goodwill of a government official to protect the pub-lic’s right to know. That’s why advocates of the First Amendment must keep pressuring Congress to approve a federal shield law.