Senator Lindsey Graham (R-SC) and Senator Chuck Schumer (D-NY) confer during a news conference for new media shield legislation, July 17, 2013. (Reuters/Jonathan Ernst)
When a federal appeals court ruled in July that the First Amendment did not protect New York Times reporter James Risen from being compelled to testify against a former CIA official charged with leaking classified documents to him, it set a precedent with grave implications for investigative journalism, particularly in matters of national security.
The ruling followed revelations that the Department of Justice secretly seized the records from Associated Press phone lines and the emails of Fox News reporter James Rosen, who the DOJ deemed an “an aider and abettor and/or co-conspirator” in a criminal leak of State Department records. This aggressive pursuit of journalists and their sources reignited calls for federal media shield legislation, which had stalled out twice in Congress.
Yesterday, the Senate Judiciary Committee passed the “Free Flow of Information Act,” designed to protect journalists ordered to reveal confidential information. Because of a loophole for national security cases, however, the law may not shield the reporters who need it most—like Risen.
As written, the Senate bill would not protect journalists if the government could make the case that the information sought would assist in mitigating “acts that are reasonably likely to cause significant and articulable harm to national security,” a phrase so full of ambiguities as to be essentially useless. “Basically all leak cases that involve journalists’ emails or themselves getting subpoenaed to appear in front of a judge involve national security cases, so this exception basically just tilts the playing field to the government. The burden that the journalist has to overcome is virtually impossible,” said Trevor Timm, the executive director of the Freedom of the Press Foundation. “The way the bill is written gives all deference to prosecutors’ claims on national security.”
While the Obama administration’s campaign against leakers spurred the reintroduction of the shield law, the national security carve-out rendering it toothless is the president’s work, too. Obama cosponsored the original shield legislation in the Senate, only to demand deep revisions from the Oval Office in 2009—including the exemption for leaks affecting national security. “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback,” Senator Chuck Schumer, who was a primary sponsor of the legislation, said at the time, noting, “it will make it hard to pass this legislation.” Indeed, the bill died in the Senate.
Days after the AP story broke in May, Obama asked Schumer to reintroduce the legislation, which included the national security loophole. But most of the following media scrutiny focused on a different flaw in the legislation: its attempt define who qualified as a journalist.