Media Shield Law: The Rest of the Story

By October 4, 2007Media Relations

The Washington Post displays a paroxysm of editorial concern today about a federal media shield law, S. 2035, The Free Flow of Information Act, which is being marked up in the Senate Judiciary Committee. (Details here.) The issue blew up with the Valerie Plame controversy, the jailing of the New York Times‘ Judith Miller, etc., etc.

There’s the lead editorial: “A Needed Balance.” The basic argument:

We strongly support efforts to protect journalists and their sources. The Washington Post Co. and other media organizations have lobbied for the bill, which would keep prosecutors from going after reporters as a first resort and provide journalists a qualified privilege not to divulge sources. That protection goes only so far: For example, where there is “a preponderance” of evidence that disclosure would “assist” in preventing a specific act of terrorism, reporters would be required to testify.

On the op-ed page, the Post publishes a column by U.S. Attorney Patrick Fitzgerald, “Shield Law Perils,” opposing S. 2035, as a threat to national security investigations; Theodore B. Olson writes another piece, arguing that federal protections have long been needed to foster a free press and free society.

All well and good. We’re tired of a D.C. media ethos that elevates anonymity to a virtue, and in doing so makes gossip and calumny the coin of the realm, and the advocacy for this legislation has featured too much of this self-justifying self-interest. But the operation of a free press is surely a matter of core importance to our freedoms, a constitutional matter. So let the debate take place.

But let the full debate take place. The Free Flow of Information Act has given serious heartburn to the business community because of the possibility of unintended consequences, the undermining of trade secrets and intellectual property rights. In an early version, the NAM saw a real danger that a disgruntled employee, for example, could steal the formula or designs to a brand new, sure-to-make-money product, leak it to an activist reporter and do serious damage to a company and then have the crimes be protected by an overly broad federal media shield. Someone breaks into a doctor’s office, steals medical records, leaks them to the press? That might be protected.

Victor Schwartz of Shook, Hardy & Bacon testified on the House version of the legislation last June on behalf of the NAM; you can read his prepared remarks here.

Fortunately, the sponsors of the legislation have been sensitive to these concerns, and many improvements have been made. Business is still interested in more, clearly defined protections for private-sector interests, and we’re still working on the bill.

But the funny thing is, you wouldn’t know any of this business aspect to the bill from reading today’s Washington Post, its lead editorial and two op-eds, would you? The issue is ONLY about the media; a major, private-sector issue loses out to media self-interest.

Which causes us to muse: How many times does that happen, that the media tell a story about a piece of legislation with heat and passion, but only part of the story? Leaving the reader essentially uninformed?

And then a bill passes, with all its glorious unintended consequences….

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