Reason For No Federal Shield Law? Terrorism, of Course!
Ahhh yes terrorism. Our good friend. The be-all end-all catch-all excuse for everything. In this case, it’s the be-all end-all catch-all excuse for the Bush administration to oppose a federal shield law for reporters.
The Bush Administration Wednesday again asserted its strong opposition to a federal shield law that would protect reporters from having to reveal information about their confidential sources.
A majority of states have such a law and journalists have been pushing for federal protection, arguing that the government is clamping down on more traditional means of gathering information, like FOYA requests, in the name of national security.
At a Senate Judiciary Hearing, the fourth hearing the committee has held on shield legislation, Senator Patrick Leahy said that a half-dozen journalists have been fined or jailed for not revealing sources in the past year, while the bill has been blocked from passage by some Republicans
But Deputy Attorney General Paul McNulty countered that “There is not one shred of evidence supporting the notion that the Department of Justice is out to get the media.”
Invoking national security, McNulty argued that the bill would “put a thumb on the scale in favor of the reporter’s privilege.”
He argued that if the government “cannot confidential source information unless it first proves that the harm to our national security would outweigh the public’s interest in maintaining the free flow of leaked information.
“Our national security is too important to be subjected to these standards and burdens.”
Notice the difference between what Leahy said and how McNulty responded. Leahy presented statistics about how many journalists had been jailed. McNulty, in a rather defensive fashion, asserted that the DOJ was not “out to get” the media. Well, that’s all well and good, but that’s not what Leahy said. Leahy said that while Republicans in Congress dragged their feet on the shield law, people who would’ve been protected have been making the trip to jail quite frequently.
Secondly, McNulty’s assertion that the bill would tip the scales in favor of reporters is ironic considering as of right now the law is lopsidedly on the side of the government and governments have started invoking strange and stupid justifications for pursuing journalists like the funds used to purchase a city’s police car being partially federal gives the federal government the right to pursue vandalism of those cars as if they were federal property, and the courts, as lackeys of the government are allowing this specious logic to continue.
But don’t darer ask the President or Vice President to disclose anything. Then it becomes an instant constitutional issue, resulting in a lecture on executive privilege. McNulty’s assertion that the scales would be tipped presumes that they aren’t already tipped toward the Oval Office / White House.
What’s stranger, however, is that McNulty seems to be obsessed with the burden all these free reporters are going to create and at the same time he apparently missed some Congressional testimony, particularly by William Safire:
When asked at a July 2005 hearing by Leahy (D-Vt.) whether the privilege should be absolute, New York Times columnist William Safire said no. “If a national security crisis is about to occur, as citizens, reporters have to help. But journalists and reporters are not the fingers at the end of the long arm of the law.”
This is exactly the same argument that Josh Wolf has made time and time again while the government pursues its ludicrous and unfair case against him. In that case, he argues that forcing him to turn over footage he shot at a protest would be like making him into an unpaid law enforcement officer, even though California has a shield law (which, of course is overruled by the standards and burdens of the federal government).
I would love to see a federal shield law for journalists. It would prove that the government is willing to stand behind the Constitution and protect the rights of journalists and at the same time encouraging people with something to say that may be in the public good to talk to the press with impunity.
I won’t hold my breath waiting for this to happen, but I’ll continue to hope for it.
via Lost Remote
Technorati Tags: journalism, shield law, government
September 22nd, 2006 at 3:25 pm
Usually I’m right in step with you, but I can’t follow you here! Especially in the last 10 years, the press has not earned trust. We’ve seen that they have an agenda other than the public interest – and that cuts both ways, liberal and conservative.
The system now works (more often than not). If a reporter is withholding information a prosecutor says he needs, let them fight it out in court on a case by case basis. There is no reason to let reporters have a blanket immunity in all cases. That would make them more powerful than any other people in this country – and they are too powerful as it is!
Saying this makes reporters “into an unpaid law enforcement officer”s is not a realistic argument since all Americans can be compelled to provide testimony on things they witness and face jail time if they refuse. Using that logic means we are all “unpaid law enforcement officers”. Why not a shield law that protects everyone from being forced to testify or turn over anything against their will?
Is balance tipped in favor of the government now? Yes. But at least we choose those people – we don’t choose our reporters. If this is something that is being abused by the government, then the answer is to address the abuse by the government and stop it under threat of the ballot box, not over-react in the opposite direction by over-empowering reporters who we have no leverage with.
It sure sucks that the first comment I ever leave here has to be on a disagreement! Other long-time lurkers: why not post occasionally when you agree with Vincent so you don’t end up like me!
September 22nd, 2006 at 5:09 pm
Welcome aboard, James!
Here’s the problem with your argument. All Americans are not required to comply with court orders. Spouses, lawyers, psychiatrists, priests, and doctors are not required to disclose anything to a court of law.
The problem is that being thrown into jail for disobeying a court order is a contempt charge, which for the most part isn’t “fightable” (for lack of a better term) in a court of law. You basically rot until you comply.
I’m not a big fan of the press, but frankly the first amendment’s purpose with regards to the press is protecting the press from the government and from government interference. Seeing as their role is that of a watchdog of the government, there’s an obligation to make sure that their right is absolute which includes protecting sources. Without the ability to protect one’s sources, a reporter can’t effectively fight a government that’s out of control because the government will always have the trump card of jail time.
It shouldn’t be that way and it’s directly counter to what freedom of the press is intended for.
Feel free to comment more often, btw
September 22nd, 2006 at 10:12 pm
But (with the possible exceptions of spouses) there are caveats to all those other privileges.
- Lawyers can’t be forced to reveal information, but they can’t litigate contrary to what they know. If your client says “I stabber her”, the lawyer can not argue that he did not stab her.
- Psychiatrists, priests, and doctors, if I’m not mistaken, are bound to report if a patient or parishioner reveals they are a risk to others or in some jurisdictions if a crime has been committed.
I guess my problem boils down to making sure “their right is absolute”. You say “Without the ability to protect one’s sources, a reporter can’t effectively fight a government that’s out of control”. So the answer is to give so much power to the press that we risk them getting out of control? You don’t think the press will abuse absolute immunity?
As I said, why not go to the root of the problem – government abuse of throwing journalists in jail? Make the burden of proof on the prosecutor more stringent. Make the charges more “fightable”. Spell out in advance the types of things that can be withheld and what may not be.
If we’re only talking about a reporter protecting a source, I’m with giving them some more protection they they now have (but not absolute immunity). But if we’re talking actual evidence of a crime being committed, then I just don’t have a lot of sympathy for reporters (assuming the authorities aren’t on a “fishing expedition”).
I’ll try to join in more often! As I said, we’re usually in agreement! I’m with you on the breast-feeding thing for example! But for goodness sakes, did you have to put that picture of Streisand up! The goggles do nothing!
September 25th, 2006 at 2:56 pm
Great piece, Vinny.
James: Just as there are restrictions – as you point out for lawyers, doctors, etc. – there ARE restrictions on what a reporter can withhold, as well. They can only withhold the name (or other identifying information) of their source. That’s it. The information that’s been disclosed is out in the open, but the source is what is protected. What could possibly be wrong with that?
Regarding the government’s ability to keep secrets: This sickens me to death. How in God’s name could the Bush admin consider this latest “leak” of info regarding how all of our spy agencies think this war in Iraq has INCREASED terrorism as Top Secret or Classified or whatever it is? Someone’s ass needs to be beaten to a pulp for witholding this info from the American public.
We hire these assholes to work for us, not the other way around.
Finally, I think that Josh guy should be compelled to turn over the film. It’s evidence. Just as you can be compelled to testify at a trial, even if you didn’t intend on witnessing the crime, our law has a long tradition of requiring testimony or the turning-over of evidence. This has nothing to do with protecting sources.