Shield Law Revisions Endanger Free Press, Public

With the Senate preparing this week to take up a federal shield law with holes punched in that protection by the Obama administration, Kevin Smith, President of the Society of Professional Journalists, weighs in in the following editorial.

On Thursday, the Senate Judiciary Committee is expected to vote on legislation that would grant federal protection to journalists and, more importantly, their anonymous sources.

In this age of Enron, Balco and Walter Reed Army Medical Center, it is critical that people who have information vital to the public get some protection to share their stories. Without this law, many may not come forward. When that happens, we all suffer.

Up until last week, there was confidence the bill - S. 448, also known as the Free Flow of Information Act - would finally jettison from the Senate Judiciary Committee with the blessing of Democrats and Republicans. Just about all that remained was the need to iron out details of national security interests and language to determine who would actually be covered under the bill. No small task, to be sure. But neither seemed insurmountable.

Then the White House dropped its hammer. The administration, which previously backed the bill, had a sudden change of heart and reversed its support.  On the campaign trail, then-candidate Barack Obama pledged to support the idea of more protection for journalists and their sources. He held onto that belief until last week, when, after a meeting of high-level national security officials, he did an about-face.  His move has outraged a number of the bill’s proponents, including high-ranking Democrats sponsoring S. 448.

Apparently to the dismay of the administration, this bill currently contains language that would require concerns about national security matters to be taken before an impartial judge - who would then appropriately weigh the need to protect information verses the public’s right to know. Not surprisingly, the Justice Department sees this as problematic because it wants to have the lone say in what constitutes national security. So, Obama instructed his legal team to propose different language that ultimately renders S. 448 useless.

And without the administration’s support, it is unlikely Democratic senators will support the bill, which means it will likely never see the light of day for a full Senate vote. In essence, this reversal may very well kill the bill Obama so heartedly supported a few months ago.

If a bill with the administration’s proposed language passes, it would clear the way for federal prosecutors to threaten reporters with jail time or fines for the sake of “national security.” If reporters refuse to give up the information, they would likely find themselves thrown into jail until they change their tune. Without a current law on the books, this has been a common tactic of the Justice Department. And, undoubtedly, some members of the public have avoided going to the press because of fears that a reporter may identity them rather than face jail time or fines.

While the concept of journalists going to jail isn’t new, the rate at which they are called into court is on the rise. Evidence shows federal subpoenas of journalists has dramatically increased in the past eight years. This is exactly what the nation’s news gatherers are trying to stop - the continuation of the federal government’s wholesale attack on the media whenever it feels information threatens operations. 

Sadly, Justice Department and national security officials have convinced the president that journalists should go to jail more frequently. And they have convinced him that citizens with information on corruption, negligence and wrongdoing should think twice about coming forward.

And because of that, we may all suffer.