On Capitol Hill, there’s new-found White House support and congressional action
behind proposals to for the first time
provide legal means in federal courts for journalists to keep secret their
confidential sources and unpublished information. President Obama called for
passage of federal shield law in the wake of two controversies in May involving
Department of Justice moves to seize journalists’ phone record, e-mail and
other data.
A long-standing goal of many journalism
organizations for years, an earlier version of a shield law gained U.S. House
approval in 2009. But it died the next year in the Senate, in large degree
because of the then-breaking controversy surrounding Manning and his leaking of
hundreds of thousands of secret military reports and diplomatic cables to the
online organization Wikileaks.
Just as this latest attempt at the shield law
gathers steam, along comes Manning and Wikileaks again. Just a few miles from
the Capitol, in a military courtroom at Ft. Meade, Md., Manning faces
court-martial proceedings about the Wikileaks disclosure. Prosecutors say
classified information from that unprecedented disclosure then went from
Wikileaks to Osama Bin Laden and others, endangered American lives and harmed
relations with U.S. allies.
The Manning trial raises anew not only the previous
specter of the massive Wikileaks disclosures, but the fear that any source protection in
federal courts will make it just that much more difficult to find and prosecute
those leaking documents that threaten American lives and the nation’s safety.
Such fear – which last time led to the White House
withdrawing its support of the shield law – will just add to an already complex
issue of defining who is covered by the revived “Free Flow of Information Act”
—in effect, answering the root question of “Who is a journalist?
Wikileaks describes itself as “a not-for-profit
media organization” that provides “an innovative, secure and anonymous way for
sources to leak information to our journalists.” That self-definition could not
be further from one favored by some members of Congress, who would see it
labeled a terrorist organization.
Currently, two potential definitions are on the
table: In the Senate bill, gathering information to distribute it to the public
is all that’s required – which might or might not include Wikileaks. In the
House version, there is an added condition: Newsgathering must be done “for
financial gain or livelihood.” Wikileaks is funded by contributions for its
work, but is that the kind of income the bill’s sponsors have in mind? And then
there are bloggers and student journalists, many of whom neither work for
commercial enterprises or are paid for their work. Would they be included or
excluded by the proposed shield laws?
Both House and Senate versions exclude for “agents
of a foreign power.” As Washington Post national security write Walter Pincus
noted in a recent column, such a definition would exclude journalists working
for organizations tied to terrorist groups,
but might it also exclude “… the BBC, Agence France-Presse and some
Russian government-owned services?”
Some First Amendment advocates see any description
of a journalist as a form of government licensing – one of the very conditions
that prompted the nation’s founders to provide such strong First Amendment
shelter for a free press. And, as Pincus mused in that same column, such a law
could be used by any given administration in the future to exclude reporters or
media outlets disliked by government officials.
In the end, Congress should keep in mind that while
recognizing an ultimate need for national security, the goal should be to keep
our fellow citizens as well-informed as possible.
About the author: Gene Policinski, senior vice
president and executive director of the First Amendment Center, is a veteran
journalist whose career has included work in newspapers, radio, television and
online.
This article was published by the First Amendment
Center.
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