We Don't Need No Stinkin' Shield Law, Part 1
The Free Flow of Information Act would be a nightmare for journalists.
Read Part 2 of Shafer's screed against the shield law.
Beware of anything that unites 60 of the nation's top media organizations and press associations. This ordinarily quarrelsome lot has set aside their differences to support a pending federal shield law—the Free Flow of Information Act (S. 2035)—designed to help journalists protect their confidential sources from federal subpoenas.
Everybody (PDF) from the Washington Post to Reuters to the Newspaper Guild to Bloomberg News to Rupert Murdoch's News Corp. to NPR to the New York Times Co. is backing the bill, whose House analog, H.R. 2102, cleared that chamber 398 to 21 last October. The Newspaper Association of America and the National Association of Broadcasters produced an ad touting the legislation, and the ad ran in both the Post (a full page) and Times (two full pages!) this week in donated space.
A federal shield law has long been on the to-do list of many news organizations. But what really got the First Amendment lobby's engine running were two events from the summer of 2003. First, a decision by Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, upset the media-friendly legal consensus that had grown out of the 1972 Supreme Court decision in Branzburg v. Hayes. Without getting too legal on you, Posner's reading of Branzburg essentially convinced his fellow judges that journalists had no right, qualified or absolute, to withhold testimony when subpoenaed.
Second, a Robert Novak column that named undercover CIA officer Valerie Plame resulted in an investigation by a special prosecutor that produced subpoenas for several Washington journalists. After the Supreme Court refused to hear the appeal of the subpoenaed reporters who refused to answer federal grand jury questions (Time's Matthew Cooper and the New York Times' Judith Miller), news organizations' lust for a shield only grew.
Although federal shield law advocates like to invoke Cooper and Miller when talking about the need for such a law, the current legislation wouldn't have helped them much because it's no "get out of court" card for subpoenaed journalists. The proposed law would merely require the government to show why reporters must be forced to testify, a bar that is by no means insurmountable under the current regime. Judge David S. Tatel found in the Cooper-Miller case that special prosecutor Patrick Fitzgerald had "met his burden of demonstrating that the information is both critical and unobtainable from any other source." In other words, with a shield law, Miller still would have gone to jail.
Are federal subpoenas really so numerous that a new law is needed? The First Amendment lobby would have you believe that journalists are being buried alive in them, but that's not the case. In a 2006 op-ed, Department of Justice official Michael Battle wrote, "In the past 15 years, in only 13 cases have subpoenas been issued to reporters for 'confidential source' information—an average of less than one case a year. It's difficult to conceive of a 'chilling effect' on legitimate journalism from this record." Under Department of Justice guidelines (PDF), which date back to the Nixon administration, before a federal prosecutor subpoenas a member of the press, he's supposed to file a request with the attorney general. The Reporters Committee for Freedom of the Press, a press advocacy group, learned via a FOIA request that the attorney general had approved 65 media subpoenas between 2001 and 2006—13 in 2001, seven in 2002, 16 in 2003, 19 in 2004, seven in 2005, and three in 2006. Hardly a landslide of subpoenas.
(The RCFP stipulates that these numbers do not include subpoenas issued outside of the guidelines. Also, special prosecutor Patrick Fitzgerald functioned as a mini-AG in the Plame investigation, so he didn't have to file subpoena requests.)
For better than 35 years, the guidelines have made prosecutors think twice before bothering the AG with press subpoenas. The current Bush administration may have blustered a lot about the damage done to national security by classified information appearing in Washington Post and New York Times blockbusters, but it has yet to follow the big talk with investigations and subpoenas. Why, you ask? As former Attorney General Richard Thornburgh said in 1998, "Most prosecutors are very wary for a practical reason: You don't want to get the media mad at you."
With the exception of the recent subpoena issued to New York Times reporter James Risen, demanding the confidential sources for his book State of War, I am unaware of any new flood of federal subpoenas. From my reading of the Free Flow of Information Act, I doubt it would have provided Risen with any additional legal harbor. The "balancing act" that a shield law would allegedly provide is already in place, and it's working—it's called the federal guidelines.