By Carey Shenkman, First Amendment Attorney
After a recent setback where the Supreme Court refused to intervene to prevent the DOJ from forcing New York Times reporter James Risen from testifying against a source, several First Amendment groups are calling for Congress to rush to pass a law to make sure he and future reporters aren’t forced to testify.
This is a bad idea which will certainly backfire—the reason being that the obvious contender for a shield law, which passed the Senate Judiciary Committee in September, would do James Risen and other journalists no good. Since last summer Congress has been considering S. 987, the Free Flow of Information Act (“FFIA”), which is designed to protect reporters from having to reveal the identities of their confidential sources in court. But even Risen himself disapproves of this measure, observing that its broad national security exceptions would not have helped in his case. He even asked, “should the journalistic industry support something that wouldn’t have any real effect?”
Ironically this fact is not stopping professional journalist lobbying groups from using his case as the poster for passing the FFIA.
The need for a federal reporter privilege is plain. Last year the Justice Department subpoenaed phone call records from the Associated Press. Risen’s failed Supreme Court appeal raised the stakes, threatening what many call a “showdown” between the journalist and Attorney General Eric Holder.
This explains the message many journalism groups are sending to Congress: hurry. For instance, the National Press Club urged lawmakers to “quickly pass legislation,” Society of Professional journalists president David Cuillier said Congress should “move quickly,” and the Newspaper Association of America “strongly urges” the passage of the FFIA.
But the FFIA is the wrong choice, for three reasons. First, it contains broad exceptions for national security. A prosecutor may overcome the shield by showing that the information sought would “materially assist” the government in “preventing” or “mitigating” an “act of terrorism”—a definition the Department of Justice can and will argue covers nearly anything. This is what knocks out Risen, who published a story about a botched CIA plan to foil Iran’s nuclear program.
But the problems don’t stop there. The measure, secondly, unnecessarily confines journalism to a privileged class, straining to define a “covered journalist” as someone who meets complicated thresholds of salary, employment, and institutional affiliations. A safety clause asks judges to decide if the journalist is engaged in “legitimate newsgathering”—a problematic question for any judge to decide. This knocks out significant independent and nontraditional media.
Third, the law formally excludes organizations such as WikiLeaks and the Intercept—Glenn Greenwald’s new vehicle for publishing Edward Snowden’s releases—because both primarily publish unauthorized leaks. Their reporting includes some of the most significant national security coverage of our time. Excluding their sources from this law’s protection delegitimizes the incredibly important public contributions of whistleblowers like Chelsea Manning—who received a sentence of 35 years in prison for providing documents to WikiLeaks—as well as Edward Snowden.
Late May, the House of Representatives passed a different, better shield law. Lawmakers approved an amendment to an appropriations bill barring the Justice Department from compelling reporters to testify about confidential sources. It is unclear if the proposal will stay afloat in the Senate, but at least the amendment contains no loopholes, unlike the Senate’s FFIA.
Luckily, the FFIA may not reach the Senate floor before Congress’ August recess. We need a shield law, but not this one. As organizations emphasize how Risen’s case illustrates the need for a shield law, they should consider whether what they are pushing will actually do him any good.
Carey Shenkman is a First Amendment and human rights lawyer working for Michael Ratner, President Emeritus of the Center for Constitutional Rights. He can be reached on Twitter @CareyShenkman.