Sen. Chuck Schumer is a fast-talking New York Democrat who is trying to have it both ways on protecting journalists and their sources from government intimidation and prosecution. Schumer said recently he has enough votes to gain Senate passage of his Free Flow of Information Act that would supposedly strengthen such protection. President Obama has also endorsed it. It's not clear whether House Republican leaders will go along. Schumer clearly wants journalists to think he is trying to lend them a helping hand, but his bill may actually make it easier for federal prosecutors to force disclosure of their sources.
Hardly anybody disagrees with the proposition that the First Amendment protects the right of journalists to receive information from government sources and to report about it. Journalists' sources, however, can be prosecuted if they can be identified. The information they leaked must also have been classified and releasing it must have damaged national security or compromised an ongoing law enforcement investigation. For that reason, there is constant tension between the media and government on the issue of whether journalists can or should be compelled to reveal their sources when classified documents or information are involved.
Such tension was at the heart of controversies that gave rise to the Schumer bill in 2013, including the Justice Department secretly subpoenaing information on two months of calls on 21 telephone lines used by AP reporters and secretly using a search warrant to obtain emails by Fox News reporter James Rosen in an effort to identify his source for a story. Schumer claims his bill would add new protections for journalists so they could not be forced to compromise their sources, but he has also admitted that the new protections wouldn't cover journalist Glenn Greenwald, who received volumes of sensitive national security documents from former National Security Agency contractor Edward Snowden.
Robert Romano of Americans for Limited Government argues that passage of Schumer’s bill would ultimately mean less protection for all journalists relying on classified information because the measure “provides the federal government with the legal basis for compelling those sources be revealed by a court order."
As Romano sees it, "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.”
A journalist could appeal an adverse decision unless officials can prove an act of terrorism or other actions that may “cause significant and articulable harm to national security” are involved. Then the journalist's sources must be disclosed. But the law already says releasing classified information harms national security, so Schumer's bill creates a gaping hole that federal prosecutors will surely exploit.