Legal View: Protect reporters, and protect everyone

Paul Fletcher, The Daily Record Newswire

U.S. Attorney General Eric Holder has come out strong for passing a federal shield law. And maybe that’s the one good thing — the only good thing — to come out of the recent controversy over the Justice Department’s seizure of phone records at The Associated Press and the surveillance of Fox News reporter James Rosen.

The word “scandal” gets thrown around loosely in politics. But the fact that the government would intrude on the private communications of journalists merely seeking to do their jobs — to pursue the truth and tell it to the public — is scandalous. It is outrageous. It is the kind of government action one would expect in a banana republic or other totalitarian state, not America.

Shield laws are on the books in the great majority of states; in Virginia, a reporter’s legal protections are established by case law. Shield laws help to protect the identities of reporters’ confidential sources. They generally require that before demanding that a journalist reveal a source, the government must ask a judge to weigh whether the information should remain confidential. The government must issue a subpoena and give the reporter notice and a chance to be heard.

But there is not a current shield statute to cover any matters that arise under federal law. And despite the actions of Justice in seizing private phone records and keeping tabs on reporters’ movements, Holder now wants to see one passed. Federal shield law proposals have been languishing in Congress for several years. A bipartisan group of senators and representatives already has the bill in the hopper.

The Free Flow of Information Act of 2013 (H.R. 1962/S. 987) was introduced this month in the House by Reps. Ted Poe, R-Texas; John Conyers, D-Mich.; and Trey Radel, R-Fla.; the Senate version was sponsored by Sens. Chuck Shumer, D-N.Y., and Lindsay Graham, R-S.C. The FFIA would ensure, at the federal level, that reporters could continue to do their jobs and the sources could disclose confidential information without the imminent threat of exposure and prosecution.

The FFIA does not give an unquestioned green light to report with impunity. Instead, it establishes a qualified privilege for reporters. If the government demands information, a judge would weigh whether to require a journalist to testify about confidential sources, including when the information relates to terrorism or some other threat to national security.

Passing the FFIA would put an end to inconsistency in the courts. In 2008, when a federal shield law proposal was before Congress, attorneys general in 41 states backed adoption of a federal standard.
The fact that there were state laws but nothing on the federal side caused uncertainty for journalists and sources. A federal law is needed.

And ultimately, the FFIA does not protect just reporters. It protects every citizen in this country. It preserves the public’s right to know, one of the cornerstones of our freedoms. If a whistleblower fears that reporters will be compelled to reveal his identity, then he never will come forward. The important ability to hold the government accountable will be lost. Gary Pruitt, the president and CEO of the AP, said that Justice’s seizure of the AP phone records already has had a chilling effect on journalism. He said officials who normally talk to AP reporters have become reluctant to do so. The reason: “They fear that they will be monitored by the government,” Pruitt said.

The message for Congress is clear: Pass the federal shield law. Now.


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