Federal Media Shield: Why, Again, is It Necessary?

The Washington Times provides a pro-and-con matching of columns about the federal media shield legislation, i.e., a proposed law that would let journalists refuse to disclose their sources in legal proceedings. The Free Flow of Information Act is sponsored by Rep. Mike Pence (R-IN), who writes, “A legislative shield for the press?”

The con comes from Attorney General Michael Mukasey, who challenges the pressing need for a federal law. In “A shield for the press?” Mukasey focuses on national security and intelligence issues, but makes broader points worth noting:

The Department of Justice is committed to protecting a free and robust media, but creating a statutory privilege for journalists is no small matter. A legal privilege can bar access to information otherwise relevant to national security, criminal and civil investigations and proceedings. Technological advances constantly expand the population involved in what could be considered “journalism,” and the range of information potentially subject to a journalist’s privilege is virtually limitless.

Which suggests the private sector’s problems with the legislation, that is, creating an ill-defined class of citizens (journalists, bloggers, trial-lawyer fronts) with special, “extra” First Amendment rights to acquire and publish confidential business and personal records.  Your correspondent’s recent column in Forbes addresses some of those issues.

Mukasey also notes…

One might assume that a fundamental change of this kind would be considered only in response to a dramatic spike in the number of subpoenas to the press. In fact, the opposite is true. Since 1991, the Department has approved subpoenas to reporters seeking confidential source information in fewer than two dozen matters. This record provides no justification for a new statutory privilege.

That’s right. The push for a federal law came largely as a response to the jailing of New York Times reporter Judith Miller for refusing to reveal her sources in the Valerie Plame name leaking (it was Richard Armitage), and then the contempt charges levied against Toni Locy, a USA Today reporter who covered the rumor-plagued investigation of James Hatfill’s non-involvement in the anthrax case. The Justice Department last week settled with Hatfill for $5.8 million, while Locy’s legal circumtances remain cloudy. We draw from the comments from Hatfill’s attorneys that a federal media shield would have just shielded the attacks on Hatfill’s reputation.

Hatfill’s attorneys blasted the news media, making no distinctions in quality of coverage. “This was not a case in which a courageous whistle-blower called government malfeasance to the public’s attention,” they said in a statement. “It was instead a case in which the government used the press, violating federal privacy laws in the process.”

Does that kind of slander deserve protection?

For more from Hatfill’s perspective, see this WSJ op-ed by his attorney, Mark A. Grannis, “Justice and the Press.”

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