When it was discovered earlier this year that the Department of Justice was massively intruding on news gathering, there was a loud hue and cry for a federal shield law, and rightly so.
The department had secretly obtained the office phone records of Associated Press journalists — records that potentially revealed communications with confidential sources — and had ridden roughshod over Fox News reporter James Rosen’s rights, monitoring his personal email, phone records and movements.
The incidents revived the Free Flow of Information Act to enact a federal shield law, but the legislation hasn’t gotten much notice all summer. Now it will likely move to the front burner again, since a federal appeals court on July 19 ruled that New York Times reporter James Risen must testify in the criminal trial of a former CIA official who was charged with providing classified information for Mr. Risen’s 2006 book, “State of War.”
Journalists covering any type of story that results in federal charges can’t fall back on a shield law, so they can be called to testify. Indeed, in last week’s ruling, the United States Court of Appeals for the Fourth District, in Richmond, Va., said that First Amendment protections do not extend to reporters who receive unauthorized leaks.
This is troubling on many fronts, but the primary issue is that, while this is a criminal trial, it is hardly a matter involving an imminent threat to public safety, with Mr. Risen’s insights the only means by which to avert harm to U.S. citizens. The issue at hand in this trial is a chapter in the book that details an operation to trick Iranian scientists with misleading nuclear information during President Clinton’s administration — which ended nearly 13 years ago.
If the Justice Department puts Mr. Risen on the stand, what more evidence is needed that it’s open season on journalists covering the federal government?
This is a leak prosecution, posing no real threat to anybody. What the federal government seeks here is not just to stop leaks and punish leakers, but to also compel them to not talk to journalists anymore, eroding the public’s right to know what the federal government — our employees — are doing with our money.
Most states have shield laws in place for reporters, and what Mr. Risen’s predicament and the recent massive federal overreach into journalists’ records proves is that it’s way past time to enact a federal shield law. But in doing so, as we’ve noted previously, Congress should make one important distinction: that the legislation offers protection for all who act in a journalistic sense.
The Department of Justice claims it’s on board with a federal shield law, but it wants that law to limit the scope of who can be protected. The bills currently in both the Senate and the House are termed the Free Flow of Information Act of 2013, yet they narrowly define who qualifies as a journalist, notably excluding from protection bloggers, freelance writers and nonsalaried journalists.
Such a bill might help Mr. Risen, who would likely fall into the government’s protected class. But it hardly facilitates the free flow of information in this evolving era of journalism, when reams of excellent investigative work are being produced by bloggers and independent website operators.
Mr. Risen, who said he will appeal the decision that he must testify, deserves protection here, to be sure. But just as sure, you can’t have a federal shield law that allows the U.S. government to ostensibly license journalism by defining who is and who is not a journalist.
This editorial appeared July 26 in the Las Vegas Review-Journal.