The Magazine

Shielding What from Whom?

Jun 3, 2013, Vol. 18, No. 36 • By ANDREW FERGUSON
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The workings of Washington sometimes attain a kind of purity in their illogic. This happens most often after a particularly jarring event, when the frenzy to do something, anything, becomes irresistible to the beehiving journalists, legislators, lobbyists, and regulators who constitute the capital’s political class. Usually the legislative overreaction is blessedly fleeting and inconsequential. The demand for new gun control measures after the horrors of Newtown is a nice example: Although the legislation would have done nothing to prevent the atrocity that provoked it, it gave our city’s peacocks many weeks of deeply satisfying moral preening and then faded harmlessly away, leaving only a litter of scare headlines, outraged op-eds, and hysterical fundraising appeals tumbling amid the tail feathers. 

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Other times, Washington’s gratuitous overreaction has lasting and genuinely destructive effects. The War Powers Resolution of 1973 and the Budget Act of 1974 were supposed to reclaim congressional prerogatives in the midst of the executive excesses revealed by the Watergate scandal. Together the two laws have distorted policy-making in every department of the federal government for nearly 40 years. And now comes the journalism “shield law” that President Obama suddenly insists is a dire necessity. Cosponsored by Sen. Charles Schumer, a Democrat, and Sen. Lindsey Graham, a Republican—hey, that makes it bipartisan!—the Free Flow of Information Act has the declared purpose of making it harder for prosecutors to wrangle the names of government sources (leakers) from journalists (leakees). As an exercise in gestural politics, it wouldn’t confuse democratic processes as profoundly as the post-Watergate legislation did. But close enough for government work.

In keeping with Washington’s illogic, the shield law would likely have done nothing to avert the jarring event that inspired it. Earlier this month, we all learned that Justice Department officials, investigating the leak of a counterterrorism operation in Yemen and beyond, had subpoenaed and pawed through the phone records of reporters in the Washington bureau of the Associated Press. Republicans and Democrats alike rose on their hind legs to declare themselves “profoundly disturbed” and “deeply concerned.” When legislators insist on describing their emotional state in this way, you can be sure they are temporarily at a loss for something to do but will do it anyway, by God. Fortunately for them, Schumer offers them something to do: In 2009, with the encouragement of the president, he introduced a federal shield bill protecting journalists from overreaching investigations. The bill died a quiet death then, owing to a lack of support from the president. Now the president supports it again. He knows a potential bandwagon when he needs one.  

In fact, back in 2008, Sen. Obama joined John McCain, Richard Lugar, and many other bipartisan types to cosponsor a shield law even broader than Schumer’s 2009 bill. He also pledged his devotion to journalistic privilege in a deferential appearance before a gathering of newspaper editors. But we know how it goes with those promises made by Barack Obama during that first campaign, when the world was young. Once he was president his enthusiasm for a shield law went the way of his hatred for the Patriot Act or his insistence on comprehensive climate change legislation. Dreams collided with reality and reality won. By the time Schumer’s 2009 bill died, Obama’s Justice Department had managed to weaken the journalistic privilege with special exceptions, allowing judges to approve the release of private records to prosecutors and to compel reporters to testify about leaks that endanger national security.

Those exceptions will likely remain in the current bill, which means it could not have inhibited the Justice Department from doing what it did to the AP and its phone records. The Free Flow of Information Act is, in other words, completely beside the point. But if it passes now it will not be without effects, most of them pernicious.

At least 31 states have a law protecting journalists under varying circumstances from having to disclose their sources. The laws have proved popular because they are a convenient and harmless way for a legislator to stay on the good side of the local publishers and media owners that deliver news about him to the folk back home. You have only to glance from state to state to see the problems in federalizing a journalistic privilege. States and municipalities don’t deal in the secrets necessary to maintain national security, which, if mishandled, can get lots of people killed—something you’d seldom say about leaks from the Keokuk department of roads and transit. States differ hugely on whom the shield is supposed to protect, on which matters—civil? criminal? proprietary?—the shield is supposed to cover, and on the manner in which differing claims under the law are to be resolved. Simply scaling up this incoherence to the national level won’t make it go away.

More than 50 news organizations (Reuters, Gannett, the New York Times, and so on) signed a letter protesting the AP subpoenas, and of course journalism guilds like the Society of Professional Journalists are using the subpoenas to agitate on behalf of the Free Flow of Information Act—and for the same reason guilds always lobby the government for special privileges. The act will go a long way toward establishing a government-sanctioned journalistic class. There will be, on the one hand, approved reporters who are immune to certain kinds of governmental inquiry, and, on the other hand, everyone else, those less exalted citizens who, faced with the same governmental inquiry, would just have to suck it up. The act is a classic restraint of trade, protecting favored journalists from the pressure of competitors who lack the proper credential. 

We don’t doubt there are admirable libertarian impulses behind the shield law, too, if it is intended to encourage the exposure of illicit uses of government power. But like so many libertarian impulses, admirable or otherwise, this one ends up extending rather than restraining the reach of the state’s sweaty and thick-fingered hand. Any shield law must turn on definitions. Who’s a journalist? Well, says one version of the act, a journalist is “a person who, for financial gain or livelihood, is engaged in journalism.” Leave aside for the moment why anyone in his right mind would go into journalism “for financial gain.” The next question is, And what is journalism? It is “the gathering, preparing, collecting” etc. etc. “or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” These are definitions without practical meaning. They will be refined on the fly, applied willy-nilly, by either unelected judges or self-interested legislators. 

Our guess is that Schumer’s act won’t go anywhere, precisely because its support among legislators is a panicked response to a jarring event, and its support from the president, a much cooler customer, is an expedient, a mere gesture. Yet the act’s revival, however hopeless and fleeting, is worth following. It has exposed yet again the self-aggrandizing pose of the establishment press—the instinct of Reuters and Gannett and the rest to confuse the interests of their own industry with a flourishing First Amendment. Trust us: If Gannett and Reuters went toes-up tomorrow, the First Amendment wouldn’t notice. 

Even better, it reminds us of the advance our technology has made since the day of the great A. J. Liebling, author of the famous aphorism, “Freedom of the press belongs to the man who owns one.” Now, of course, we all own one. Liebling’s press baron could be anyone with a laptop and a connection to the free Wi-Fi at his local Starbucks. From even so modest a perch a budding Lord Beaverbrook or Colonel McCormick can gather “news and information” on “matters of public interest” and disseminate it to a readership beyond Liebling’s wildest dreams. The Free Flow of Information Act reminds us that the free flow of information—the freedom of the press—the First Amendment itself—will thrive so long as the government doesn’t try to protect it.

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