Is it time for a federal shield law for reporters?

By Margo Harris, News Media Alliance

In February 2018, the Department of Justice notified New York Times reporter Ali Watkins that her email and phone had been seized as part of a leak investigation — a case that resulted in the June 7 arrest of James Wolfe. Watkins’s three-year relationship with the high-ranking aide on the Senate Intelligence Committee (which she covered before joining the Times) soon became public fodder.

The titillating nature of the story, coupled with the increasingly tense relationship between the Trump administration and the press, seemed to have reignited the public’s interest in a federal shield law. The Watkins case was met with a deluge of think pieces, Twitter wars and outrage from free press advocacy groups.

The calls for federal protection of reporters’ privilege extended beyond an outraged internet; this past Tuesday, Rep. Jim Jordan (R-Ohio) led a hearing before the House Oversight and Government Reform Subcommittees on Intergovernmental Affairs and Healthcare, Benefits and Administrative Rules entitled “Shielding Sources: Safeguarding the Public’s Right to Know.” Representatives and witnesses representing a range of affiliations to the media industry discussed H.R. 4382, the Free Flow of Information Act, which was first introduced in the House in November 2017. The measure would provide federal protection for journalists, shielding them from being compelled to disclose their sources in court.

Witness testimony shed light on the importance of a federal shield law — a necessary addition to the state-level protections journalists have now. According to Lee Levine, senior counsel at Ballard Spahr, LLP, 49 states and the District of Columbia have adopted shield laws, but these protections vary in scope, and none can protect journalists from having to give up their source during a federal investigation.. Conflicting laws and judicial precedent have rendered journalists and the legal community wholly unsure about what rights journalists have to protect their sources.

Rick Blum, policy director at the Reporters’ Committee for Freedom of the Press (RCFP) said that, “depending on what court you’re fighting the subpoena in, you may get a different result.” Indeed, some states have shield laws allowing journalists “absolute privilege,” while others have shield laws that cover only “qualified privilege” and contain some exemptions. A reporter fighting a subpoena in Oregon (an absolute privilege state), for example, would likely fare better in court than a reporter in North Carolina (a state with qualified privilege).

While a federal shield law would not supersede state laws (go here to see Kansas's shield law), protection on the federal level would send a clear message about the importance of preserving the relationships journalists have with their sources.

Jordan, the chairman of the subcommittee, stressed the urgency of reclaiming First Amendment protections and issued a stern reminder that Congress cannot look the other way while the government intimidates journalists in pursuit of their confidential sources. He went on to applaud earnest bipartisan efforts to move forward with a federal shield law, saying that both he and colleague Jamie Raskin (D-Md.) agree that the government cannot “intimidate or censor the town crier, be it the chief contributor to The New York Times or a freelance journalist from the 4th district of Ohio.”

Raskin, meanwhile, echoed the sentiments of his late father, philosopher Marcus Raskin, reminding the assembled that “democracy and its operating principle, the rule of law, require a ground to stand on and that ground is the truth.” That truth, he explained, comes from the indispensable service that journalists provide. While not everyone can attend congressional hearings or city council meetings or travel to warzones to determine the meaning and reality of foreign policies, we are all impacted by these events and should be “equally invested in ascertaining the truth of what is happening in our names as citizens.”

Without a robust and free press, this cannot happen.

Subcommittee members and witnesses didn’t shy away from the role the current administration plays in the oppressive environment for journalists. Representative Raja Krishnamoorthi (D-Ill.), referencing the United States’ plummet to number 45 on the World Press Freedom Index (a list compiled by Reporters Without Borders to reflect the independence of the press around the world), asked witnesses to state the ways in which the Trump administration has specifically threatened a free press.

The RCFP’s Blum emphasized that journalists have thick skin and can take personal jabs and criticisms from the president, but Donald Trump’s attempts to discredit the industry as a whole have damaging implications. When a leader calls the press “the enemy of the people” and tells the public they can’t believe what they read, journalists’ ability to tell the critical untold narratives is undermined. “It’s harder to write a story if their audience or sources don’t think they’ll be given a fair shake,” Blum said. Moreover, the public now struggles to determine what is true — an issue that rises above partisanship.

Perhaps most importantly, witness testimony revealed the very tangible loss we’ll experience if reporters face continued intimidation. Sharyl Attkisson, investigative correspondent at FullMeasure, shared with the committee some of the award-winning stories she’s reported — stories that only came to light because of confidential sources: an investigation into fraud within the Red Cross after the influx of 9/11 donations; a report contradicting false information the government and BP provided in the wake of the 2010 oil spill — critical contributions to public discourse. Information from confidential sources can be “the genesis of a story,” she explained. Attkisson also alleged that the U.S. government engaged in unauthorized and illegal surveillance of her laptops and phones, and said she felt she could no longer guarantee her sources the protection they required to come forward.

Raskin closed the hearing by reiterating that journalists underscore a healthy democracy — that they are “the life blood of American political culture.”

The question remains, what happens next? Will the Free Flow of Information Act be put to a vote on the floor of the House? The apparent bi-partisan support bodes well for future legislative action, but shield laws have failed to gain traction in the past (most recently in 2011). The Alliance will be keeping a close watch on the legislation and will keep members updated as it progresses.