Ivan Eland: A federal shield law is needed to protect the press
Like it or not, the Constitution’s First Amendment gives the media special protection in the American republic. That amendment says, “Congress shall make no law … abridging the freedom … of the press.”
With one of the recent presidential candidates unconstitutionally threatening to shut down media outlets or take away their (non-existent) licenses when they say or do something he doesn’t like, it is not hard to imagine him in office trying to ferret out government whistleblowers by applying legal coercion to force members of the press to cough up their sources. In fact, this candidate, when he was president previously, did precisely that, as did his predecessor from the opposite party to an even greater extent.
Forty-nine states and the District of Columbia have laws or state court rulings that shield reporters from such government coercion. Despite the special protection of the media by the Constitution at the national level, no similar federal law exists to provide the same safeguard. Thus, federal Circuit Courts of Appeals rulings have had to give some stopgap protection.
Why is a federal shield law for reporters needed? If the government cannot keep its essential information under wraps, then the press should be free to publish it for public inspection. However, the government doesn’t see it that way, and it has plenty of coercive legal power to subpoena reporters of leaked information to divulge their sources so that any government leaker can be prosecuted.
And legally, if reporters gather or transmit vaguely defined “national defense information” from leakers or whistleblowers, the journalists can risk being prosecuted criminally through the Espionage Act of 1917; only tradition has circumscribed the prosecution of reporters under the law.
Of course, the general lack of protection for reporters’ sources dissuades such federal whistleblowers from talking to reporters about wrongdoing or corruption in government. Even in a republic, the public should be aware that plenty of corruption and skullduggery exist in government.
A proposed federal reporters’ shield law, the PRESS (Protect Reporters from Exploitative State Spying) Act, is going through Congress and passed by the House of Representatives unanimously twice (an unusual feat of consensus in today’s polarized political world). However, the bill has been opposed in the Senate by a small group of members because it would encourage leaks of national security and law enforcement information.
Yet, the bill has exceptions to force reporters to divulge sources to prevent any acts of terrorism or imminent violence and does not provide immunity to reporters who commit illegal acts to obtain information (such as hacking, etc.).
Also, it is widely acknowledged that much overclassification exists in information classified by the feds for “national security” reasons and that classification can be flagrantly abused to hide information that is embarrassing to the government.
Finally, the few senators objecting to the bill claim to be constitutional textualists and originalists. Yet, the First Amendment’s prohibition on abridging the freedom of the press mentions no exception for “national security.”
Besides, the government has so much coercive power that it can often find leakers and prosecute them without intimidating reporters to divulge their sources.
With any federal shield law, it may seem that reporters have been designated as a special class of citizens, but the First Amendment already realizes that keeping a vibrant republic demands special protections to maintain a free press. (In the internet era, however, any conception of journalists may need to be widened to include new forms of the profession.)
And those safeguards for the press may be especially needed if a candidate is elected who parrots Joseph Stalin by deeming the press “an enemy of the people” and regularly threatens media outlets with retribution and coercion.
Editor’s note: Ivan Eland is a senior fellow with the Independent Institute and author of “War and the Rogue Presidency.” He wrote this for InsideSources.com. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.
Do reporters have more rights under the First Amendment than ordinary Americans? Should they?
The answer to both questions is “no.” Unfortunately, a bill passed by the House of Representatives and is sitting in the Senate wants to change that.
The PRESS Act would allow the media to operate outside of the law and withhold information vital to federal criminal investigations of serious crimes, including national security matters. The bill will expire on Jan. 3, as does all pending legislation, when the 118th Congress ends. Congress should think twice before considering it again.
No one questions the importance of a free press. It is essential to the healthy maintenance of a functioning democratic republic. There is a reason the First Amendment to the Constitution prohibits Congress from “abridging the freedom of speech, or of the press.”
Freedom is one thing. Impunity is another.
The members of the “press” aren’t given greater rights than citizens; both are equally entitled to freedom of speech. However, that freedom does not extend to covering up a crime or withholding evidence of a crime.
I have reported stories about abusive Department of Justice practices. Sometimes when I did, I personally ran the risk of Justice issuing a subpoena to me to testify about who my sources were. That’s the risk I took publishing the stories. That’s the risk any reporter takes: a grand jury may subpoena them if the leaks were illegal. You chose the profession; deal with it.
The PRESS Act would remove the risk. It would make reporters immune to investigations by federal law enforcement authorities, including grand juries. They would not have to disclose “any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.”
The only exceptions would be information necessary “to prevent, or to identify any perpetrator of, an act of terrorism against the United States” or “to prevent a threat of imminent violence, significant bodily harm, or death, including specified offenses against a minor.”
Note the glaring loopholes in these exceptions. The terrorism exception is limited to the U.S., so if a reporter obtains crucial information identifying the “perpetrator” of an act of terrorism against another country, such as an attack on Israel, he could not be forced to disclose that information. However, any other American obtaining such crucial information would not be shielded from the full force and power of federal law enforcement — and he shouldn’t be. Neither should journalists.
There is also no national security exception. Any reporter having evidence about who leaked classified documents, such as the recent leak of Israel’s plan of attack on Iran, a violation of numerous federal laws, including the Espionage Act, could withhold that evidence from a criminal investigation. This hampers the ability of law enforcement to stop crimes that endanger our national security and the national security of a valued ally.
If reporters want to publish classified information, they should bear the risk of violating federal law. Let them shoulder the burden of the profession.
Did the supporters of this bill in the House understand the loophole they were creating with these inexplicable limitations that would endanger our national security and withhold vital information from our allies? Perhaps the fact that the bill was passed with a mere voice vote tells us that the answer is that they didn’t think much about it.
The second exception also shields reporters from having to disclose information about numerous crimes. The bill blithely refers to the “information” that a reporter may have, but what we are really talking about is evidence of a crime that a reporter may have.
Reporters will have to produce such evidence to, for example, a grand jury, only if there is a threat of imminent violence, significant bodily harm or death or certain offenses against a minor. That means if the violence, injury and death have already occurred, yet a reporter has evidence showing who the criminal is that murdered, raped or assaulted someone, he or she cannot be compelled to reveal it. There is no exception for other serious crimes such as drug dealing, bank fraud or bribery.
With this shield law in place, a reporter could keep such evidence to himself.
Could a regular American escape the obligation of grand jury testimony? Only if we invoked the Fifth Amendment.
This law is not needed. In 1972, the Supreme Court held in Branzburg v. Hayes that reporters have no First Amendment privilege that shields them from being compelled to testify before a grand jury about evidence they have of a crime.
That has not stopped reporters, bloggers and citizens from investigating and publishing numerous stories about high crimes and misdemeanors, including those by government officials. That includes Watergate, the Pentagon Papers, Katie Pavlich’s groundbreaking work about Operation Fast & Furious, and the FBI coverup over the Hunter Biden laptop.
A federal shield law for reporters would give the institutional press rights far beyond those of ordinary citizens — a fundamentally unfair and dangerous proposition. It would allow them to withhold vital evidence of crimes, government corruption and wrongdoings.
The First Amendment was never intended to produce such a result for good reason. And Congress should not either.
Editor’s note: J. Christian Adams is a commissioner on the U.S. Commission on Civil Rights, president of the Public Interest Legal Foundation and a former Justice Department attorney. He wrote this for InsideSources.com. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.
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