Wiston Papers

The proposed Federal Shield Law to protect journalists is a dangerous idea.

Congress shall make no law…abridging the freedom of speech, or of the press; …

The First Amendment is a 45-word affirmation of our forefathers’ belief in the sanctity of fundamental human rights.  A faith in people as the repository of freedom and effective government.  And those basic rights include the absolute guarantee to worship, speak, publish and protest without fear of recrimination.

So absolute is this guarantee that the Bill of Rights declares in elegant, concise, powerful, unambiguous prose that “Congress shall make no law...”

    The portion of the First Amendment that specifically covers journalists is a mere 78 characters--sufficiently short to tweet yet strong enough to support a republic based on individual liberty.

Despite this 200-plus year bedrock underpinning our nation, some contemporary journalists are willing to risk their freedom and weaken the nation’s foundation. They are mesmerized by a Pied Piper who promises additional protection for the press with the Free Flow of Information Act of 2013--the so-called Federal Shield Law now before Congress.

So seductive is the proposal that some news organizations have succumbed and openly support it.  This tryst is a dangerous liaison and journalists intoxicated by its allure will, I fear, regret their actions when they awake to the sober ramifications of their unwise embrace.

Senate Bill 987 and House Resolution 1962 purportedly erect barriers to prevent federal entities from compelling journalists to reveal protected information. At first blush the proposed legislation appears to befriend the media.  But closer examination reveals the risk to journalists and to society if the measures are adopted.

Section 2, lines 8--25 specify clearly the circumstances under which journalists are not protected by the shield.  The bills use vague language such as “has exhausted all reasonable alternative sources...” and “there are reasonable grounds to believe...” (I have underlined the key words.)

The Federal Shield likewise states that journalists can be forced to reveal protected information when the government “has established that the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue...”

Furthermore, if enacted, the proposed legislation permits subpoenas or court orders as long as they “shall, to the extent possible be narrowly tailored in purpose, subject matter and time covered...”

What constitutes “reasonable alternative sources?”  Who decides if there are “reasonable grounds to believe?”  How does one know when the “interest in compelling disclosure clearly outweighs the public interest?”  When are we certain that a subpoena or court order has been “narrowly tailored?”  How is that measured and by whom?

The proposed Federal Shield Law is ambiguous. It delineates by omission the circumstances under which the federal government can compel journalists to divulge their sources.  Lawmakers inevitably will acquiesce to the demands of competing voices in shaping the final measure--many of whom do not have the best interests of the press at heart.  

Journalists are better served by fighting to uphold the absolute freedom of the press they now enjoy as clearly articulated by the First Amendment rather than lobby for legislation that holds more risk than security.  

The genius of our forefathers is evident in the beauty, simplicity and boldness of the Bill of Rights.  Let’s honor their wisdom by upholding the liberties we have  and know.

The proposed Federal Shield Law is unnecessary and potentially dangerous.  Americans of all persuasion should reject it.

   

Steve Coon

May 30, 2013