BY ROBERT ROMANO | APRIL 2, 2014
Media shield law is anything but
The ill-titled "Free Flow of Information Act" — supposedly a bill that will protect journalists' confidential sources often as it relates to the publication classified information — has enough votes in the Senate to pass, sponsor Sen. Chuck Schumer (D-N.Y) has proclaimed.
They're calling it a media shield law. It is anything but.
Rather than protecting journalists' sources as it relates to the publication of classified materials — think, cases like the Pentagon Papers or the Justice Department's recent tapping of the Associated Press' phones — it provides the federal government with the legal basis for compelling those sources be revealed by a court order.
To wit, right in the bill's enacting clause, it states the purpose is "providing conditions for the federally compelled disclosure of information by certain persons connected with the news media."
To get at the sources, under the bill, the government need only show it has "exhausted all reasonable alternative sources (other than a covered journalist) of the protected information," that "there are reasonable grounds to believe that a crime has occurred," that "the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution," and it is certified by the Attorney General.
As a defense, the journalist would have to show that "clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure (including the extent of any harm to national security)."
But, there is a grand old exception on all matters related to national security if the case involves the "unlawful disclosure of properly classified information" and the government shows the disclosure of sources would "materially assist the Federal Government in preventing or mitigating an act of terrorism; or other acts that are reasonably likely to cause significant and articulable harm to national security."
That should not be too hard for the government to show, especially since courts will have to accept the essential premise of the legislation that disclosure of classified information by its virtue harms national security.
Besides, is there any other type of disclosure by media outlets besides the unlawful variety where sensitive documents are leaked to journalists?
This is the critical question, because the scope of the legislation is not at all intended to protect the "free flow of information," it is designed to crack down on the unlawful disclosure of classified information, and to force journalists, whether they're "covered" or not, to disclose their sources in any case as it relates to the publication of classified material.
In the aforementioned national security cases, "the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information" does not apply.
That is, unless the government or the court waives a potential claim that national security was directly harmed by the disclosure of classified information. But why would they do that? Even if they did, a journalist would still be forced to furnish "clear and convincing evidence that disclosure of the protected information would be contrary to the public interest."
The implications of this provision cannot be overstated.
Since when do journalists need "clear and convincing evidence" they serve some vital public interest in order to exercise their First Amendment rights? Why would we let federal judges be the final arbiter of what leaks of classified information were in the public's interest? Isn't it for the public to decide what was in their interest?
The outcome will be that the Justice Department targeting of the Associated Press' phone records will be legalized because that case involved the disclosure of information that resulted in a story about a foiled Yemen terrorist plot. The government has argued that it was an "unauthorized and dangerous disclosure of classified information," precisely the argument the new legislation anticipates and legitimizes.
Moreover, under the bill, "a judge of the United States may find a covered journalist to be in civil or criminal contempt if the covered journalist fails to comply with an order of a judge of the United States compelling disclosure of protected information." So, failure to disclose confidential sources will be punishable as a criminal offense by journalists.
Perhaps more importantly, a "covered" journalist "does not include any person or entity — whose principal function, as demonstrated by the totality of such person or entity's work, is to publish primary source documents that have been disclosed to such person or entity without authorization."
Sorry, Glenn Greenwald, that probably means you, and your new news organization, firstlook.org and The Intercept — which was founded to continue publication of the Edward Snowden documents that blew the lid off the National Security Agency (NSA) mass surveillance scandal.
It seemingly also applies to any national security journalist that principally depends on anonymous sources leaking classified information.
Because they would not be covered under the act, would this make it possible for the government, at its discretion, to prosecute journalists for publishing classified documents under the Espionage Act — even if the journalists were not the original source of the documents?
Perhaps in the future that could mean James Rosen really could be charged as a "criminal co-conspirator" when he publishes stories based on any classified information, too. Or James Risen could not only be compelled to testify to reveal his sources or be held in criminal contempt, if his reporting depends on too many classified sources, perhaps he could be prosecuted, too.
Even if judges ultimately attempt to protect journalists a case by case basis under the act, the threat of prosecution of journalists will undoubtedly have a chilling effect on speech.
As Trevor Timm Trevor, co-founder and the executive director of the Freedom of the Press Foundation, wrote of similar legislation in 2013, "virtually the only time the government subpoenas reporters, it involves leak investigations into stories by national security reporters. So it's hard to see how this bill will significantly help improve press freedom. Worse, there's a strong argument that passing the bill… will weaken rights reporters already have and make it easier for the government to get sources from reporters."
This has the potential to dry up the publication of any documents that in the past have proven to be critical in exposing government abuses by intelligence and military agencies.
This is not the "Free Flow of Information Act" or a media shield law of any kind — Orwellian newspeak at its best. Instead, this legislation will create a legal firewall around the worst abuses of executive power that threaten every American's civil liberties.
Why any media outlet would support such legislation that will ultimately be used to undermine their own First Amendment press freedoms is baffling, to say the least.
Robert Romano is the senior editor of Americans for Limited Government.