The Magazine

A License to Leak

The unhappy consequences of a shield law for journalists.

Oct 22, 2007, Vol. 13, No. 06 • By GABRIEL SCHOENFELD
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And if the definition is drawn too narrowly, so as to encompass only salaried professional journalists, a very different and even more disquieting set of problems arises. In the Supreme Court's landmark 1972 Branzburg decision, Justice Byron White memorably affirmed that, in our political tradition, "liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods." Freedom of the press, White continued, is a "fundamental personal right" that is not confined to newspapers and periodicals or any other instrument of the press.

The preservation of this fundamental personal right is ultimately what is at stake in the debate over the shield law. If such legislation were to be enacted in the name of freedom of the press, narrowly defined, it would be a supreme irony. For a basic component of freedom of the press--the right of all Americans to be gatherers and purveyors of information--would then be well on its way to evisceration.

The journalists who are pushing for the shield law are thus engaged in a monumental act of impudence. They have already wrested from the American people, against their will as expressed in long-settled law and against their most central interest in self-preservation, the right to determine what remains secret in wartime. They are now asking the American people officially to recognize and ratify their position as an elite body of opinion shapers, so exalted in status as to be exempt from an ancient principle underpinning our system of jurisprudence--the public's right to hear every man's evidence when crimes are committed against the United States.

Gabriel Schoenfeld, senior editor of Commentary, contributes regularly to the blog at commentarymagazine.com.