The Political Chase

The Consequences of Shield Laws

The Senate is considering a bill to provide limited protection to journalists (i.e., shield law), which if passed could have substantial consequences. After the Nixon administration, Watergate, and more than six years of the Bush-Cheney administration, it would be hard to argue the importance and significance of the press, and thereby the necessity of protection. However, the mere act of implementing a federal shield law provides definition and scope, which, depending on the circumstances, can be both an asset and a liability.

Although the evolution of the press has created a substantially different medium than the Founding Fathers could have possibly envisioned, they viewed the press as the only available source to provide the critical two-way communications between the People and the Republic, as well as independent oversight. The Founding Fathers accurately and rightfully believed Democracy could not survive if two-way communications did not exist. Hence, the press has historically and justifiably been deemed the Fourth Estate.

Many people disagree to what extent the First Amendment protects the press, especially in the area of confidential sources. The contemporary debate is surely derived from the 1972 Supreme Court decision in Branzburg v. Hayes (summary, detail)and subsequently heightened when New York Times reporter Judith Miller was jailed in 2005 for refusing to reveal confidential sources (viz. Scooter Libby) in the CIA leak case. In Branzburg v. Hayes, the Court ruled the press “is not without First Amendment protections,” but could not agree “about the forms or depths of those protections.”

Although, shield laws exist in 49 states, there are no federal shield laws to protect national reporters, which raises the question, what is applicable to the New York Times reporter, for example, covering a Washington based story, and is predicated upon sources residing in Mobile, Alabama? Obviously protection at the federal level is needed.

I believe it is safe to assume the recent CIA leak case is one of the primary motivators of the Senate’s decision to debate implementing a shield law. It also serves as a good example to demonstrate the liabilities and assets of such laws.

The CIA leak case was based on the illegal outing of CIA agent Valerie Wilson, an operative at the time working in the WMD counter-proliferation division, by Dick Cheney, Scooter Libby, and Karl Rove. Briefly summarizing, Judith Miller, a New York Times reporter at the time, was jailed for contempt of court because she refused to reveal sources related to the case. After serving 89 days in prison, Miller finally acquiesced to the demands of the court and revealed her sources. Another key reporter in the case, Matthew Cooper of Time magazine, was spared imprisonment when he reached an agreement with prosecutors at the last minute.

Although Scooter Libby did a grand job of protecting Dick Cheney by obstructing justice and lying to the Grand Jury about the case, Libby would have never been convicted of his crimes if reporters had not been compelled to reveal their confidential information. On the other hand, there is no way of determining how many people will refuse to provide reporters information in the future, for whatever the situation may be, out of fear they may be revealed because reporters may be compelled by the courts, or limitations of law in the future, to reveal their sources.

In contrast to the CIA leak case, on December 16, 2005, New York Times reporters James Risen and Eric Lichtblau revealed George Bush’s widespread warrantless eavesdropping program - the countless violations of the Foreign Intelligence Surveillance Act. No one can possibly argue that this information would have been revealed in something less than decades later if reporters had been required to reveal confidential source information. Although President Bush declared it a violation of national security and immediately initiated a Justice Department investigation for the public revelation of his crimes, no reporter has released, at least publicly, their sources of information. One can only imagine to what extent President Bush will carry out retribution if the source(s) is ever revealed.

It almost goes without saying, any Bush-Cheney-Nixon like-minded person(s) in power will twist and distort any shield law that may be in place to use as retribution against their critics and whistle-blowers. The importance of Congress carefully implementing shield laws cannot possibly be overstated.