Congress needs to enact a shield law for journalists
PRESIDENT OBAMA seems to be of two
minds when it comes to freedom of information and the role of the press.
On his first day in office, he committed his administration to
“creating an unprecedented level of openness in government,” and he
proclaimed in a recent address that a free press is essential to
democracy. At the same time, Mr. Obama’s administration has conducted
the most far-reaching campaign against leaks in recent memory, with
twice as many prosecutions as in all previous administrations combined.
While both of these ideas may be strongly held by the president, they
are coming into conflict.
There has always been a delicate balance
between secrecy and the public’s need to know what the government is
doing and how decisions are reached. The volume of classified
information has exploded in the digital age, and so has the number of
people authorized to access it. The urge of government officials to talk
about such matters — out of dissent, or just a desire to spin — remains
undiminished. We are firm believers in maintaining this balance between
secrecy and openness, but we worry that, in all the hysteria over
leaks, it may tip too much to one side.
A discouraging sign came in the July 19
decision of the U.S. Court of Appeals for the 4th Circuit, which held
that New York Times reporter James Risen had no privilege under the
First Amendment that would allow him to refuse to testify about a
confidential source in a leak investigation. Mr. Risen’s argument that
he should not be compelled to testify in a case involving a former CIA
official was supported by many news media organizations, including this
newspaper, and he has vowed to appeal the ruling.
If allowed to stand, the ruling could
jeopardize the ability of reporters to protect the identity of sources, a
vital tool for journalistic inquiry. As Judge Roger Gregory wrote in a
dissent, “The public, of course, does not have a right to see all
classified information held by our government. But public debate on
American military and intelligence methods is a critical element of
public oversight of our government. Protecting the reporters’ privilege
ensures the informed public discussion of important moral, legal and
strategic issues.”
The Risen case underscores the need to
write into federal law a shield for the news media. Some 49 states and
the District have established media shield laws or recognized such
privileges in court. A good place to start on the federal level is with
legislation recently introduced by Sens. Charles E. Schumer (D-N.Y.) and
Lindsey O. Graham (R-S.C.). While the proposed law would not offer
absolute protection, it would introduce a “balancing test” for a court
to use before compelling disclosure from a reporter. The test would take
into account the public interest in the disclosure and in maintaining
the free flow of information. This should restrain overzealous
prosecutors from roping journalists into leak prosecutions and sustain
the uneasy but essential balance between secrecy and openness.
– Washington Post
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