Federal shield law: Recent intrusions reignite need for legislation

A federal shield law should have been passed years ago. In the wake of recent Department of Justice intrusions on news gathering, a federal shield law is paramount. The free press’ ability to hold government accountable depends on it.

First, Justice secretly obtained the personal and office phone records of Associated Press journalists — records that potentially revealed communications with confidential sources — as part of a leak investigation. Shortly after that overreach, it was revealed that Attorney General Eric Holder’s department monitored the personal email, phone records and movements of Fox News reporter James Rosen. Justice obtained the warrants to do so by accusing Mr. Rosen of criminal conduct in the course of reporting innocuous information from a State Department source — going so far as to say Mr. Rosen broke the law “at the very least, either as an aider, abettor and/or co-conspirator.”

From these two incidents comes the revival of the Free Flow of Information Act, bipartisan legislation introduced in both the House and the Senate. The legislation would protect the public’s right to know what the federal government is doing by allowing journalists to protect the identities of their confidential sources without fear of being jailed. Federal prosecutors, federal criminal defendants and federal civil litigants would be prohibited from subpoenaing information from journalists unless they could convince a federal judge that the need for the information outweighs the public interest in the free flow of information. (Many states, including Nevada, offer immunity from prosecution to journalists who obtain information only by promising confidentiality to their whistle-blowing sources.)

One noteworthy supporter: President Barack Obama himself. When Mr. Obama was a U.S. senator, he was in favor of such legislation. Then, when he became president and promised the most transparent administration in history, he backtracked on his support of a federal shield law. The president’s preference in 2009 was to include wording in the legislation that would make the executive branch — not the judiciary — the final arbiter in matters of national security.

Regardless of why Mr. Obama is back on board, a federal shield law is indeed needed, and not just for those who are accredited by big-name media outlets such as The AP, The New York Times, The Washington Post, CBS, CNN or Fox News. The law is needed for journalists at outlets great and small, and in this age of specialized websites, blogs and Twitter, the law should also protect all who trade in the free flow of information, whether they draw a regular paycheck from a media entity or not. The free press is changing rapidly, and people get their information in ways we could have never foreseen several years ago.

Shield law legislation must be crafted in a way that recognizes those changes and doesn’t allow prosecutors to narrowly define who is and who is not protected by a such a law. That’s a de facto federal licensing of journalists. A federal shield law is long overdue, but it won’t serve the public interest unless lawmakers get it right.