The Republican American of Waterbury (Conn.), May 31, 2013
Advocates of a shield law for journalists sound an awful lot like the gun-control activists who have been pushing for tougher laws in recent months. Both were energized by specific incidents. And both readily concede the incidents that stoked their fury wouldn't have been prevented by the laws they propose.
In the case of the shield law, the probing of Associated Press reporters' phone records by the U.S. Department of Justice and the seizure of emails from Fox News reporter James Rosen by the same agency are being cited by advocates of a federal shield law. But even the most ardent supporters view the legislation as flawed. "Because some of the details of the AP case aren't known, it isn't entirely clear that this legislation would have entirely prevented the AP scandal," said the Milwaukee Journal Sentinel in a May 24 editorial. Connecticut gun-control advocates sounded much the same theme when they admitted the law adopted in April would not have stopped Adam Lanza from killing 20 children and six educators in Newtown on Dec. 14. That is, it would not have deprived Lanza of the firepower to go on his murderous rampage or resulted in his being locked up in a mental institution beforehand.
It is often said that generals have a tendency to fight the last war. But that deficiency is the least of the problems with the shield law as proposed.
To begin with, reporters already have a shield law. It's called the First Amendment, and the Justice Department may have violated it in the AP and Rosen cases.
Moreover, in the legislative equivalent of "the last war," journalists were fairly easily identifiable. They worked for newspapers, magazines, and TV and radio stations or networks. Today, it's harder to define a journalist. Certainly, beat reporters for The Washington Post or Wall Street Journal qualify. But what about people who work for prominent websites, create their own news blogs, or post news and opinion on social media? Anyone with a computer can gather information via the Internet, public records or personal interviews, and disseminate conclusions to a wide audience.
With the definition of "journalist" so murky, the government would have little choice but to create its own. And that inevitably would lead to licensing -- meaning journalists would enjoy the privilege of gathering and disseminating news. Not only would this be a far weaker protection than the one provided by the rights articulated in the Constitution, but it's one the government could proffer and withdraw at its whim. It also would empower the government to silence voices officials consider problematical -- something they cannot legally do under the First Amendment, even though they try.
Nor does the government need a shield law to protect itself from leaks. It simply needs to have strong cases against leakers and the journalists they use to fulfill their objectives, and a willingness to argue such cases with as much transparency as possible. The public will be able to discern between legitimate national security concerns and partisan witch hunts.
The First Amendment provides all the protection journalists need. Any attempt to supplement -- or supplant -- this right is certain to lead to unintended consequences at best, and purposefully sinister outcomes at worst.