By highlighting journalists' need to protect confidential sources and other information, the Justice Department's recent seizing of AP phone records without notice may finally lead to passage of a federal press shield law. The Authors Guild, which has long backed the enactment of such a law, is part of a coalition of media organizations calling on Congress to use this as an opportunity to strengthen the First Amendment protection of press freedom. It's going to be an uphill battle, says legislation monitor GovTrack.us.
Still, the moment seems right. Amid the uproar over the DOJ's actions, President Obama has asked New York Democrat Sen. Chuck Schumer (D-NY) to revive shield law legislation that was shelved in 2009. Last week Schumer said he would reintroduce the bill, The Free Flow of Information Act, and Texas Republican Rep. Ted Poe introduced shield law legislation in the House. Here's the text of the bill from THOMAS (Library of Congress) and an analysis of the bill's sections by the Newspaper Guild.*
Revelations earlier this month that the Justice Department had used broad subpoena powers to secretly obtain two months of call records from 20 telephone lines, including to journalists' home, office and cell phones, in connection with a leak investigation drew condemnation from Democrats and Republicans.
The Justice Department has defended its actions by saying they were necessary to find the source of leaked information that could compromise national security. Opposition to its investigative tactic is far from unanimous. In an Op-Ed piece in the New York Times this week three attorneys who worked in the Justice Departments of previous administrations said the prosecutors were justified.
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak vigorously. The leak — which resulted in a May 2012 article by The A.P. about the disruption of a Yemen-based terrorist plot to bomb an airliner — significantly damaged our national security.
At a time when citing national security tends to trump all other arguments, passing a federal shield law that would prevent similar intrusions on journalists won't be easy. GovTrack gives the bill a 44% chance of getting out of committee, and just a 17% chance of being enacted. On the bright side, the press shield bill is ahead of the game: GovTrack reports that only 3% of House bills have been enacted recently.
The odds of passing a federal press shield bill may not be terrific, but bipartisan outrage and cooperation have finally brought it within reach.
*Note: looking for the sticky wicket? It's defining "journalism." After all, haven't Facebook and Twitter turned us all into newsgatherers and distributors? The bill deals with this (see definitions of "Covered Person" and "Journalism" in Section 4) by limiting protection to those who engage in journalism "for financial gain or livelihood."