THE BLOG
09/17/2013 08:18 am ET Updated Nov 17, 2013

New Federal Shield Bill Is Last Best Chance for Meaningful Protection of Reporters' Confidential Sources

For the first time since the post-Watergate era, the stars are aligned for Congress to enact-and for the president to sign-a "Shield Law" that would provide meaningful protection against the forced-exposure of journalists' confidential sources. Although nearly all states have shield laws, they do not apply to the subpoenas of federal courts and federal grand juries: a big gap in coverage that inevitably restricts news reporting on controversial matters involving the federal government.

News of the Obama Justice Department's overzealous investigation of leaks to the press -- in particular, leaks of information to the Associated Press and to James Rosen of Fox News -- have made temporary allies of liberal Democrats, libertarian Republicans and a defensive administration eager to renew its pro-media credentials. The result is legislation, approved by the Senate Judiciary Committee last week, that would enable a journalist to honor a promise to protect her source's confidentiality, and to do so without putting herself at risk of being held in contempt.

Ironically, the main opposition to the shield legislation comes not from prosecutors or law-and-order politicians, but from journalists-specifically, a group of influential bloggers on both the left and right, including Mathew Ingram, Ed Morrissey, Matt Drudge, Dana Loesch, Glenn Reynolds, Michael Walsh, Zoë Carpenter and Kevin Gosztola (among others). Viewing the legislation through the lens of journalism's culture wars, these writers have been quick to condemn the measure as an attempt to codify special protections for a journalistic old guard of newspapers, television and other traditional news organizations.

The criticisms are misplaced. While the legislation is hardly perfect (and no doubt reflects, to some degree, the influence of old media), it is far more protective of free speech than past versions, and it likely represents the outer limits of what is politically achievable in Washington.

The bill is platform-neutral, protecting digital media of all kinds (mobile apps too). Contrary to the criticisms, "covered journalists" under the bill include freelancers (referred to as "independent contractors") and bloggers. Balancing the need of journalists to protect sources with the justice system's legitimate need for truthful, relevant evidence, the bill requires bloggers to be able to show that they were functioning in a journalistic capacity prior to obtaining the information sought by a federal subpoena.

Even bloggers who don't satisfy the legislation's prior-journalism-experience standard nonetheless may qualify for coverage if a judge determines "under the totality of circumstances" that shielding confidential sources and information is "in the interests of justice" and necessary to "protect the public interest in gathering and disseminating . . . news and maintaining the free flow of information."

This catch-all provision, added by the Judiciary Committee at the last minute, is a huge step forward, giving federal judges discretion to apply the proposed shield law to anonymous sources who otherwise are ineligible for protection.

The legislation is also faulted for its exclusion of protection for Wikileaks. To be sure, Wikileaks and like entities are exempted, but that has nothing to do with the journalism culture wars and everything to do with Congress' intense distaste for any entity, new media or old, that dumps unredacted classified records by the truckload on the open internet. The political reality is that Congress will never pass a bill that protects Wikileaks. That's a given.

In any case, boosters of Wikileaks and its founder, Julian Assange, will appreciate that Wikileaks, by design, exists beyond the jurisdiction of any court. It doesn't need shield law protection because it is built to be immune to judicial compulsion. If the US Justice Department could enforce subpoenas against Wikileaks and Assange, it would have done so long ago. It certainly isn't holding back out of concern for the niceties of first amendment safeguards.

Another criticism is that, by selectively protecting some journalists but not others, the legislation weakens protection for all news media under the first amendment. This argument mistakenly assumes that journalists, by invoking the first amendment alone, can successfully escape the coercion of federal judicial orders.

Regrettably, recent federal court decisions have rejected first amendment-based source protection, including the District of Columbia circuit court (think of journalist Judith Miller, who spent months in federal jail to protect her source, Lewis "Scooter" Libby), U.S. district court in San Francisco (recall the reporting on Barry Bonds' steroid use by San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada) and, most recently, the fourth circuit (which has affirmed orders directing New York Times reporter James Risen to disclose his source for disclosures in a book on US intelligence operations against Iran).

The first amendment protects a journalist from prosecution for publishing information leaked to her without authorization. However, the first amendment, as a practical matter, provides little protection against a federal court subpoena for the name of the journalist's confidential source. For that protection, only a shield law will do.

The shield law bill, as amended last week in the U.S. Senate, is definitely worthy of support. Those who oppose it because it doesn't go far enough would condemn us to a status quo that is unacceptable. Like any legislation, this bill is an imperfect compromise. But perfection in the protection of first amendment rights is an illusion.

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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here are his alone. They do not necessarily reflect the views of FAC's Board of Directors.