Second try at a shield law echoes the first
Jun 6, 2013
By Gene Policinski
Inside the First Amendment
An irony of timing twice has put U.S. Army Pfc. Bradley Manning in the headlines at critical moments in gaining congressional approval of a federal shield law that would protect journalists and their confidential sources.
On Capitol Hill, there’s new-found White House support and congressional action behind proposals to for the first time provide legal means in federal courts for journalists to keep secret their confidential sources and unpublished information. President Obama called for passage of federal shield law in the wake of two controversies in May involving Department of Justice moves to seize journalists’ phone record, e-mail and other data.
A long-standing goal of many journalism organizations for years, an earlier version of a shield law gained U.S. House approval in 2009. But it died the next year in the Senate, in large degree because of the then-breaking controversy surrounding Manning and his leaking of hundreds of thousands of secret military reports and diplomatic cables to the online organization Wikileaks.
Just as this latest attempt at the shield law gathers steam, along comes Manning and Wikileaks again. Just a few miles from the Capitol, in a military courtroom at Ft. Meade, Md., Manning faces court-martial proceedings about the Wikileaks disclosure. Prosecutors say classified information from that unprecedented disclosure then went from Wikileaks to Osama Bin Laden and others, endangered American lives and harmed relations with U.S. allies.
The Manning trial raises anew not only the previous specter of the massive Wikileaks disclosures, but the fear that any source protection in federal courts will make it just that much more difficult to find and prosecute those leaking documents that threaten American lives and the nation’s safety.
Such fear – which last time led to the White House withdrawing its support of the shield law – will just add to an already complex issue of defining who is covered by the revived “Free Flow of Information Act” —in effect, answering the root question of “Who is a journalist?
Wikileaks describes itself as “a not-for-profit media organization” that provides “an innovative, secure and anonymous way for sources to leak information to our journalists.” That self-definition could not be further from one favored by some members of Congress, who would see it labeled a terrorist organization.
Currently, two potential definitions are on the table: In the Senate bill, gathering information to distribute it to the public is all that’s required – which might or might not include Wikileaks. In the House version, there is an added condition: Newsgathering must be done “for financial gain or livelihood.” Wikileaks is funded by contributions for its work, but is that the kind of income the bill’s sponsors have in mind? And then there are bloggers and student journalists, many of whom neither work for commercial enterprises or are paid for their work. Would they be included or excluded by the proposed shield laws.
Both House and Senate versions exclude for “agents of a foreign power.” As Washington Post national security write Walter Pincus noted in a recent column, such a definition would exclude journalists working for organizations tied to terrorist groups, but might it also exclude "… the BBC, Agence France-Presse and some Russian government-owned services?”
Some First Amendment advocates see any description of a journalist as a form of government licensing – one of the very conditions that prompted the nation’s founders to provide such strong First Amendment shelter for a free press. And, as Pincus mused in that same column, such a law could be used by any given administration in the future to exclude reporters or media outlets disliked by government officials.
In the end, Congress should keep in mind that while recognizing an ultimate need for national security, the goal should be to keep our fellow citizens as well-informed as possible.
Gene Policinski is senior vice president and executive director of the First Amendment Center. Email him at gpolicinski@fac.org
