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 wrong doing 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 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.
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.
Since then, 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 good will of a government official to protect the public’s right to know. Congress must approve a federal shield law.