The title of the legislation is innocent enough: the Free Flow of Information Act. The motivation behind it is a seemingly worthy one. It would give anyone in the media a shield–special protection–against being forced to reveal the names of confidential sources of information. And the result would be more and more information flowing freely to the American people, satisfying their right to know.
The organized media–the Newspaper Association of America, the American Society of News Editors, CNN, NPR, the New York Times, etc.–are wildly enthusiastic about the bill. No surprise there. It was approved by the Senate Judiciary Committee in mid-December, and chances are it will pass the Senate in 2010. A similar measure was approved by the House last March.
Yet despite the warm sentiments associated with it, the bill would do far more harm than good. Unless seriously cleaned up, it would have a distinctly negative effect on the federal government’s ability to protect sensitive national security information from being disclosed in the media. It would encourage leaks of classified information.
Rather than making it easier to learn the identity of a leaker–or of someone who knew of plans for an imminent terrorist attack–the bill would significantly raise the government’s burden in seeking a media person’s source of information. I use the term “media person” on purpose, for the bill has such a broad and -elastic definition of who’s in the media that Democratic senator Dianne Feinstein of California said members of the Judiciary Committee would qualify. Senator Dick Durbin of Illinois, the Democratic whip, said his press secretary would, too.
Feinstein and Durbin sought to limit the privilege of not disclosing sources to reporters for legitimate media outlets. This included student journalists. Their amendment was defeated. Durbin voted against the bill, the only Democrat on the committee to do so.
The bill transforms federal judges into arbiters of what information might threaten America’s national security. In this regard, the opinion of defense and intelligence officials would be given mere “appropriate deference.” Depending on the judge, that could be little, if any, deference. Jon Kyl of Arizona, the Senate Republican whip, proposed the advice of government officials be given “substantial weight,” as in the Patriot Act. His amendment failed.
The most dangerous part of the bill involves the higher standard the government must meet, in criminal and national security cases, to require someone in the media to name the source of critical, perhaps life-threatening, information. There’s a new (and vague) “exhaustion” standard. Officials must have exhausted all alternative ways of getting important information before subpoenaing a media person. There’s an “essentiality” standard. The evidence sought from the media must be essential to the government’s investigation or prosecution. And who decides? A judge.
The bill goes on and on in this vein. Its thrust is to shelter the media at the expense of national security. Sometimes this is done quite cleverly. For instance, the shield wouldn’t apply in cases where the media person actually sees or is involved in a crime. But there’s an exception to that exception. The privilege to refuse to identify a source is restored, the bill says, “if the alleged criminal conduct is the act of communicating the documents or information at issue”–in other words, leak cases. A rather large loophole.
You may wonder why Congress is bothering to create a media privilege in federal cases at this time. It’s not as if critical, top secret information isn’t flowing to the media at a record pace. The New York Times, rather than being prosecuted, won a Pulitzer Prize for divulging highly classified information about the government’s use of electronic surveillance in the war on terrorism. Nor are federal subpoenas of media persons a common practice.
The shield legislation is “a solution in search of a problem,” says Kyl. “There is no demonstrable need for this. It’s not as if a big dagger is hanging over anybody’s head.”
So why is the bill moving toward enactment? One reason is the major media have been lobbying furiously for the legislation, which has lingered in Congress since 2006. What’s odd, though, is that the press has scarcely covered the progress of the measure, perhaps because it amounts to a special favor granted by politicians. Also, the White House decided an enhanced privilege would be a nice present for the press.
In a rare instance of bipartisanship in Congress, both Democrats and Republicans are currying favor with the media by backing it. Republican senators Lindsey Graham of South Carolina, Orrin Hatch of Utah, and Chuck Grassley of Iowa voted for it in the Judiciary Committee. Republican Mike Pence of Indiana was a leading advocate in the House.
Kyl and Republican senator Jeff Sessions of Alabama struggled in vain to correct the flaws in the bill. Sessions describes the bill as “a historic alteration of the separation of powers” since judges would gain authority that belonged previously to the executive branch.
One of Kyl’s (unsuccessful) amendments made utter sense. He proposed that media persons who claim the privilege should be required to disclose their source privately to the judge. Should the judge rule against the media person, the name would be revealed. If the judge ruled favorably, it would remain secret.
“In effect, a precondition for invoking the privilege is showing the court that you are willing to comply with the ruling of the court if it is adverse to you,” Kyl said at a committee hearing. “You cannot have a heads I win, tails you lose proposition.”
Plamegate prosecutor Patrick Fitzgerald made a similar point in an op-ed piece in the Washington Post. “A threshold question lawmakers should ask is whether reporters will obey the law if it is enacted. They should ask because the Reporters Committee for Freedom of the Press calls for a shield law while urging journalists to defy the law when a court upholds a subpoena for source information.”
The fate of another Kyl amendment showed how far Congress is willing to go to coddle the media. He said the shield should be denied if the media person hasn’t promised confidentiality to the source. That struck me as a no-brainer. But after a brief discussion, it was voted down.
Fred Barnes is executive editor of THE WEEKLY STANDARD.
