Media Shield: Lawmakers Consider Pros and Cons of Protecting the Press

On July 20, 2005, The Senate Judiciary Committee conducted a hearing on what is being called "the shield law," federal legislation that would further protect reporters from revealing their sources.

The law emerges in the wake of the incarceration of Judith Miller, a New York Times reporter held for contempt of court. Miller won’t reveal a confidential source to federal prosecutors who are investigating allegations that White House officials blew the cover of CIA operative Valerie Plame Wilson.

But Miller is not alone. In 2004, 22 reporters received federal subpoenas, a large number when compared to the 1991-2001 average of less than nine per year.

Reporters are feeling more vulnerable, as are potential whistle-blowers. And many argue that without legal protections, reporters are less likely to accept confidential sources, while whistle-blowers are less likely to come forward with the truth.

History and context

The First Amendment to the United States Constitution establishes the freedom of the press, and prohibits Congress from passing any law that abridges that freedom.

In 1974, Supreme Court Justice Potter Stewart explained that the "primary purpose" of the First Amendment was "to create a fourth institution outside the government as an additional check on the three official branches" (the executive branch, the legislature and the judiciary).

During the hearing, lawmakers and media experts argued that the freedom of the press may be compromised if reporters and their confidential sources do not remain protected. They say that the shield law would protect the people’s access to the truth.

Thomas Jefferson stated clearly that if he had to choose, he would choose a free press as more important than any government. Jefferson said "Our liberty cannot be guarded but by the freedom of the press, nor that limited without danger of losing it."

History has shown over and over that a free press based in confidential leaks of government whistleblowers is the last protection the voting public has against a majority party using its victory in an election to become a dictatorship. Uninformed or misinformed voters have inadvertently elected dictators.

Shield law details

The shield law, officially called The Free Flow of Information Act, would establish reporter-source privileges on the federal level. Currently, 31 states have shield laws and 17 others provide protections through statutes or judicial precedents.

However, appeals courts have taken different positions on the issue. For this reason, the Senate bill’s sponsor, Richard G. Lugar (R-Indiana) has said that Congress should clarify these differences of opinion through federal guidelines.

Exceptions

Shield bills in both the House and Senate would require journalists to reveal their sources when it is necessary "to prevent imminent and actual harm to national security."

The national security exemption is a common legislative theme of late, especially since 9/11. Much of The Patriot Act revises current regulation in order to give greater power to government terror investigators.

The White House is opposed to a national shield law, although such a law might have protected President Bush’s senior political advisor, Karl Rove, and Vice President Cheney’s assistant Lewis Libby. They have been implicated in the investigation of the White House leak. Despite this conflict, the Bush administration states that The Free Flow of Information Act could impede anti-terrorism efforts.

Other exceptions

The House sponsor of the bill, Republican Mike Pence of Indiana, also wants to require reporters to give prosecutors information when they know a crime has been committed. Pence stated, however, that a shield law is not designed to protect a reporter but rather to protect the public.

And some say that the law should go further, removing a reporter’s shield when a source has broken the law by leaking information.

When is it in the public’s best interest to protect reporters and sources, and when is it best to require that those sources be revealed? Can the U.S. maintain both a free press and a rigorous anti-terrorism campaign? What is most threatening to freedom: terrorism or a more-limited press?

What do you think?

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Update Posted on: 7/27/2005