Pass a federal shield law

by Steven Roberts

Sen. Mike Lee, a strong conservative from Utah, and Sen. Ron Wyden, an ardent progressive from Oregon, agree on very little. But they are primary co-sponsors of a critically important piece of legislation: a law that would protect journalists and their sources from overly aggressive federal prosecutors.

Their proposal is a bipartisan answer to a bipartisan problem. Presidents from both parties have tried to investigate and intimidate independent reporters and their employers. Standing up for a free press transcends ideological and political loyalties.

“At a time when the federal government has increasingly retaliated against journalists for their use of confidential sources,” Wyden argues, “it is more urgent than ever to preserve the free flow of information to the public and ensure journalists are not unfairly and excessively targeted by the federal government for their work.”

Adds Lee, whose father, Rex, served as solicitor general under Ronald Reagan: “In a world where information is power, the role of reporters as truth-seekers and watchdogs cannot be understated. Recent events, however, have cast a chilling shadow over their pursuits. Law-enforcement agencies have resorted to clandestine tactics, subpoenaing emails and phone records in an effort to unmask confidential sources.”

In 1972, the Supreme Court weakened the rights of journalists to resist government investigators. Since then, 40 states and the District of Columbia have passed laws rebuilding those rights, and in nine others, court cases have established similar protections (Wyoming is the only outlier).

But all attempts to pass a federal shield law have failed, in part because sensitive security and intelligence issues arise on the national level. A strong bipartisan measure almost passed the last Congress, but it was torpedoed by Sen. Tom Cotton of Arkansas, and Senate leaders lacked the guts to stand up to him.

That should not happen again. A version of the Wyden-Lee bill has already passed the House, and Senate leader Chuck Schumer says he wants to send a measure to President Biden this year. But time is dwindling, and urgency is mounting. If Donald Trump wins a second term, he would certainly block any shield law, while pursuing journalists in ways that make such a law even more essential.

“His first term would prove to be a warm-up act,” Frank Sesno, my colleague at George Washington University, told the Washington Post. “I’m expecting a no-holds-barred approach. … Trump and his people don’t accept that a fundamental function of the press is accountability.”

In addition to Trump’s threats, the economic headwinds battering many news organizations make them more vulnerable to legal pressures. Kathy Kiely, Free Press Studies chair at the Missouri School of Journalism, told the media journal Quill: “Back in the day when I was a reporter, news organizations had much deeper pockets than they do now. If somebody was going to try to use the legal system to go after a reporter, there was a tremendous deal of confidence that your news organization would back you up and that the money was there to fight the good fight in the courts.”

It’s always hard to prove a negative. But as press critic Joe Mullin notes, it’s likely that the current climate has “discouraged sources from coming forward, because their anonymity isn’t guaranteed. We can’t know the important stories that weren’t published, or weren’t published in time, because of fear of retaliation on the part of journalists or their sources.”

One current case that illuminates the stakes involved centers on Catherine Herridge, a former reporter at both Fox and CBS, who was ordered to pay a fine of $800 a day by a federal judge last February after refusing to reveal her sources for an expose of government fraud back in 2017. The judge specifically mentioned the absence of a federal shield law when he cited Herridge for contempt.

The draft law reflects technological advances in two ways. It protects not just paid professionals, but amateurs like bloggers, podcasters, students and citizen journalists who use social media to distribute useful information. And it would guard a journalist’s digital records, like emails and bank accounts, which are increasingly the target of government subpoenas.

No shield law should be absolute. The current draft says journalists can be required to cooperate with law enforcement in order to prevent “a threat of imminent violence” or “an act of terrorism against the United States.”

But the essential principle remains. A shield law doesn’t just protect the press; it protects the public. All citizens benefit when powerful leaders can be held accountable by fierce and free journalists.

Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at [email protected].