[The post below is part of an exchange between Dave Pozen and Sophia Cope on media shield laws and the recently proposed Free Flow of Information Act. Don't miss Sophia's reply, which was also published on October 21.]
Now that the government shutdown has passed, the full Senate is poised to take up a “media shield” bill that news organizations have coveted for decades. These organizations should be careful what they wish for. Instead of guarding the media from prying prosecutors, a federal shield law could ultimately undermine investigative reporting—not because it fails to cover enough journalists, but because it diffuses responsibility for seeking their secrets.
The idea behind a shield law is to give judges a larger role in deciding whether journalists can be compelled to turn over confidential information from or about their sources. Longstanding Justice Department guidelines provide that journalists may be subpoenaed only as a matter of last resort and with the express approval of the Attorney General. The Senate bill would codify and extend those guidelines. Applying the Free Flow of Information Act of 2013, judges would have to confirm that the government followed proper procedures and that it truly needs the information. Journalists would have more opportunities to show that protecting their sources would advance the public interest.
In response to the Justice Department’s clampdown on leaks, momentum for this measure has surged. President Obama recently indicated his support, and a strong bipartisan coalition pushed the bill through the Senate Judiciary Committee. The Newspaper Association of America hailed the committee’s vote as “a critical first step toward protecting the public’s right to know.”
To the extent that media advocates have voiced concerns about the bill, they have tended to focus on the way in which it defines covered journalists. This definition is clearly meant to exclude entities like WikiLeaks, and it arguably excludes various other nontraditional news outlets. Some commentators have called for the definition to be loosened or discarded. Others have wondered whether the bill’s national security exception is overly broad.
Throughout these debates, the shared assumption seems to be that if Congress could just get the wording right, a media shield law would be a great victory for reporters and thus for the free flow of information heralded by the bill’s title. Even a halfway decent law, many add, would be better than nothing.
These assumptions are dubious. More than that, this framing of the debate is dangerously narrow. The most fundamental concern with a media shield law, for the end of investigative reporting, is not that it may cover too few actors or too few cases. Those issues (while significant) could be addressed by tinkering with a clause here or there. The most fundamental concern is that simply by enacting such a law, Congress will validate—and normalize—the practice of subpoenaing journalists.
We might call this the paradox of legitimation through judicialization. Under certain conditions, requiring judges to supervise a worrisome government activity can produce more, not less, discretion for officials to engage in that activity. The marginal value of the additional courtroom scrutiny is outweighed by the diminishment of extra-judicial forms of oversight and constraint.
In our current system, the Justice Department largely determines on its own whether a journalist’s secrets will be sought. And it is therefore the Justice Department that receives the lion’s share of pushback whenever a particular maneuver is seen as going too far. For instance, after media groups blasted the department for seizing Associated Press reporters’ phone records in a leak investigation last May, the President directed the Attorney General to conduct a review that led to a tightening of internal procedures.
Accusations of overreach would have less bite within a legal framework that had been blessed by all three branches of government plus the Fourth Estate. The Attorney General would always be able to respond, in effect: “Don’t yell at me for trampling on press freedoms. My department was just following a statute that Congress passed, federal judges help administer, and the media overwhelmingly endorsed.”
No longer the principal guardian of First Amendment values in this realm, the Attorney General may find herself more constrained bureaucratically even as she is liberated psychologically. The Federal Bureau of Investigation has consistently declined to pursue most leak cases brought to its attention. Within the executive branch, a shield law may well strengthen the hand of Intelligence Community hawks who want prosecutors to pursue these cases more aggressively.
Members of the media could afford to overlook these dynamics if their losses in the court of public opinion were offset by gains in a court of law. That seems unlikely to happen in critical contexts. Judges typically defer to the executive branch on national security matters. And Congress has never seriously considered a bill that would give journalists an absolute privilege to receive advance notice of the executive’s snooping or to protect their sources in criminal cases involving leaks of classified information.
These are the very sorts of cases in which the Justice Department has allegedly been pushing too far and in which vigorous investigative reporting may be most needed. Had the Senate’s shield legislation been on the books, it might have trimmed but almost certainly would not have derailed any of the recent subpoenas that caused so much controversy. Rather, it would have quieted the controversy.
The paradox of legitimation through judicialization might also be discounted if journalists who cover national security and foreign affairs were being hounded by the feds in circuits that take a narrow view of reporter’s privilege. They are not. Although these journalists face serious professional challenges right now, the government has largely avoided direct confrontations with them. According to Justice Department figures from 2007, prosecutors have been issuing fewer than two subpoenas per year seeking source-related information under the department’s internal guidelines, which Times correspondent Adam Liptak once described as “a shadow federal shield law” that is “sensible, rigorous, and predictable.” A few high-profile incidents, however troubling, should not obscure the overall record.
At the state level, one occasionally hears, journalists fare better in jurisdictions with media shield laws. But the differences observed are generally minor, and the relevant extra-judicial checks on state officials may be substantially weaker than the checks on their federal counterparts, inasmuch as major news outlets and watchdog groups tend to fixate on the latter.
In short, while a new law might usefully shield some reporters from some forms of overreach, it would also shield the executive branch from public accountability for the pursuit of reporters’ records. It is not at all clear that this tradeoff would amount to a victory for investigative journalism or open government. To the contrary, it may amount to more media subpoenas.
I can’t claim any certainty about how things would play out. I do want to claim, and to warn, that to debate a shield law without taking heed of this tradeoff is to miss a big part of the picture.
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There is an American tendency to seek a statute for every problem. There is a further tendency, among the media, to see the courts as an indispensable ally against incursions by the other branches. In this case, a federal shield law would indeed solve one problem: It would help President Obama signal his respect for reporters and thereby beat back criticism of his approach to leaks. However, such a law would do little to help journalists shine light on the darkest corners of government; perversely, it may even come to hinder those efforts.
If lawmakers were serious about facilitating the free flow of information on governmental doings, they could take steps to strengthen whistleblower safeguards, invigorate national security oversight, decrease levels of classification, and much else besides. It is not the media or the judiciary that most needs reformers’ attention right now. It is the executive branch.