JANUARY 16, 2015 — The Justice Department took two wise steps to strengthen protection for the news media last week, signaling — dare we hope? — a new and more enlightened view by the Obama administration of the rights of reporters to do their jobs without fear of government prosecution.
As he prepares to leave his job, Attorney General Eric Holder eliminated a loophole in the department’s rules that made it easier for prosecutors to subpoena journalists. At the same time, a federal prosecutor gave up on efforts to force a New York Times reporter to supply testimony in a trial over government leaks.
The latter decision is particularly significant. It signals the end of a seven-year fight by the federal government to force James Risen of The New York Times to identify a confidential source. Risen had made it clear that he was prepared to go to jail rather than reveal unnamed sources he relied on in writing “State of War,” a book describing U.S. efforts to thwart Iran’s nuclear program.
In terms of public impact, the persecution of Risen long ago came to overshadow the actual prosecution of a government official on trial for the alleged leak because of its potentially serious consequences for the practice of journalism. The bullying of Risen was widely seen by reporters in this country as a test case of how far the government is willing to go to force them to become arms of the prosecution in cases involving the disclosure of government secrets.
The chilling effect of forcing Risen to identify sources would cripple the First Amendment. Think about it: Without the freedom to report on “secret” government activity, Americans would remain in the dark about many of the biggest controversies and abuses of the last 13 years: drones, waterboarding, secret prisons in Guantanamo, Iraq and elsewhere, NSA snooping and much more.
Last week, the Justice Department also announced a change in the guidelines established by Holder last year in an effort to heed complaints against a crackdown on the news media. The rules extended protections to the work product and communications of reporters engaged in “ordinary news gathering.” The updated policy drops the word “ordinary,” taking discretion away from prosecutors and giving them one fewer excuse to seize reporters’ records.
The revision and the turnabout in the case of Risen are gratifying. But these merely reflect government decisions and attitudes that can be changed overnight, or from one administration to another. What is really needed to bolster protection for the news media is a change in federal law to declare that reporters will not be forced to identify their confidential sources — in other words, an act of Congress.
Forty-nine states and the District of Columbia — Wyoming is the outlier here — already provide this kind of shield law for reporters. A well-thought-out solution in federal law that strikes a balance between the freedom to report important information and national security is essential if future administrations — or this one, in its last two years — should choose to target reporters and news leaks. Ideally, it would also grapple with the thorny issue of who is a journalist.
Efforts to enact such a law have stalled in recent years, but the 114th Congress should have another go at it. Absent such a statute, the validity of the First Amendment is forced to rely on the goodwill of government officials.
In a democracy, that’s not good enough.