Where’s Our Shield From The Press?

For many years, the media has been pressing for a federal shield law that would allow reporters to keep their sources anonymous. Primarily for practical reasons of greater national security risks if such a shield existed, this has been resisted. But there are many other concerns, of a citizen’s right to privacy, for example, or a reporter’s ordinary citizen responsibilities for criminal behavior.

The legislation keeps getting pushed by its proponents, and has been adjusted to supposedly reduce some concerns, but the core issues remain.

A current example comes from a case in which some in the federal government violated the Privacy Act in leaking information about a bioterrorism expert investigated in the 2001 anthrax mailings. The reporters who received this info and published it are ordered by a federal district judge to reveal their sources.

“Denying civil litigants access to the identity of government officials who have allegedly leaked information to reporters would effectively leave Privacy Act violations immune from judicial condemnation,” Judge Walton wrote, “while leaving potential leakers virtually undeterred from engaging in such misbehavior.”

The Newspaper Association of America is jubilant that its members have succeeded with their uniform editorials in obtaining such legislation to move forward in the House and Senate.

"The Free Flow of Information Act establishes important ground rules
that balance the public interest in both the free flow of information and the fair administration of justice.”

Not so fast with that one.

Gabriel Schoenfeld has testified and written critical commentary on shield law proposals. His most recent comment reveals another weakness in the proposed legislation that places reporters above the law and exempt from ordinary citizen responsibilities.

At issue is a loophole in the proposed bill. In cases in which journalists are themselves eyewitnesses to a crime, the shield would not apply. Thus, if Dana Priest found herself in a bank that was being robbed, she, like all other witnesses, would have an obligation to testify before a grand jury about what she heard and saw. She could not, under the proposed shield law, claim exemption, even if she subsequently wrote a news article about the holdup.

But this eyewitness exception itself has an exception in the proposed legislation. If the crime in question involved the unauthorized disclosure of classified government information to a journalist, than the eyewitness exception would not apply, and the journalist’s shield would remain in force.

To this, the Justice Department objects out such a provision “would permit [a] journalist to participate intentionally in violation of the criminal laws of the United States—indeed, as the recipient of the disclosure, to cause the crime to occur—with impunity.” This would put the journalist-source privilege on a completely different plane from other, long-recognized privileges, like the attorney-client privilege, which “does not apply where the attorney participates in crime.”

Who appointed reporters as above the law?