By J. David Cox Sr. |
There's never been a more important time for Congress to pass a robust federal shield law that not only protects reporters from revealing their sources in court, but provides strong privacy protections to their digital communications as well.
While this Associated Press controversy has shown how out-of-control leak investigations can easily engulf reporters, it's been a growing problem for years. President Obama, despite pledging to protect whistleblowers in his 2008 campaign, has done expressly the opposite: his administration has prosecuted twice as many whistleblowers as all other administrations combined.
Leaks are the lifeblood of investigative reporting, especially when virtually everything in the national security realm is considered "secret." Government sources face retribution from their superiors if they talk to the press, or worse, decades behind bars. Shield laws ensure sources can trust reporters to keep their identities confidential, so they can deliver important information to the public.
In response to the AP scandal, the White House is encouraging the Senate to take up a shield law it failed to pass in 2010. This is good news, but we should watch the bill with a critical eye.
As a Senator, Obama was a big proponent of a federal shield law. He co-sponsored a bill in 2007 and campaigned on the bill in 2008. However, when he became president, he backtracked and opposed the same legislation until the Senate carved out broad national security exceptions—which would have made it virtually useless to the AP.
Many federal circuit courts have a common law shield protection for journalists as well, yet these too have come under attack. Last May, Obama's Justice Department argued that New York Times reporter James Risen must give up one of his sources for a book he wrote on the Bush administration. Worse, the Justice Department argued that reporter's privilege does not exist at all for national security reporters.
If Congress ultimately refuses to pass a robust shield law, states should take the lead. While two-thirds of states already have laws that protect journalists to varying degrees, many haven't been updated in decades. In today's digital world, where many reporters write only for online publications and many citizen journalists break legitimate, important stories, these laws should be expanded to cover not just professional print journalists but anyone who commits acts of journalism.
Either way, this AP scandal is an important reminder that shield laws are vital in protecting the press, and more importantly, the public's right to know.
About Trevor Timm Co-Founder and Executive Director of Freedom of the Press Foundation
Randall Eliason Professorial Lecturer in Law at George Washington University Law School
Michael Berry Media Lawyer and Partner at Levine Sullivan Koch & Schulz, LLP