By Robert Schlesinger |
Outraged analogies to Watergate and calls for resignations and impeachment followed the news that the Department of Justice had secretly subpoenaed Associated Press telephone records from April and May 2012. While some of the analogies may have been a little over-the-top, the general outrage wasn't misplaced.
Technically, laws were not broken, because there is no law in place that prevents federal law-enforcement officials from using reporters as tools in their investigative activities. That is why the movement toward a federal reporter's privilege – or "shield law" – must resume.
Shield laws defending reporters seeking to protect information or the identity of sources have existed in this country as far back as the 18th Century. Currently, 40 states and the District of Columbia have such laws offering varying degrees of protection, although Hawaii's is set to expire on June 30 and a reprieve is unlikely. Of the states that do not have shield laws, all but Wyoming has a ruling from the state's highest court recognizing some form of reporter's privilege.
But these protections only apply in state court. No similar protection exists in the federal system. A version of a federal shield law called the "Free Flow of Information Act" has gotten close twice in recent years,twice passing the House of Representatives. On the second occasion, after passing the House unanimously, the bill received White House support. Much to the chagrin of that bill's supporters (including me, advocating for its passage on behalf of the American Society of News Editors), it did not pass the Senate.
What's particularly disturbing now about that failure is that much of the opposition came from the Justice Department, which argued that its own voluntary guidelines for issuing subpoenas to journalists about their sources were sufficient to protect reporters. However, the DOJ's willingness to seemingly cast aside its own guidelines and engage in a wide-ranging search of the AP's phone records is proof that reporter's privilege needs the force of law.
While some may have no problem letting law enforcement trump the reporter-source relationship, the First Amendment and history suggest that we don't want to tip the balance too far in that direction. Despite fears that law enforcement would be unable to prevent or punish serious crimes and despite fears that leaks of classified information compromise their ability to prevent the next terrorist attack on United States soil, it is difficult, if not impossible, to find an instance in which a leak of information to a reporter has led directly to lives lost.
On the contrary, confidential sources have, on several occasions, provided information leading to the publication of stories that have made the public aware that we might need to protect ourselves – sometimes from the acts of an overzealous or overreaching government official who takes things a little too far.
Which brings us right back to where I started. Watergate, anyone?
About Kevin M. Goldberg Legal Counsel to the American Society of News Editors
Randall Eliason Professorial Lecturer in Law at George Washington University Law School
Michael Berry Media Lawyer and Partner at Levine Sullivan Koch & Schulz, LLP