My new Think Again is called “Worse than Watergate?” Guess what it’s about.
Congratulations once again to the Hillman Foundation for their award to Andrew Sullivan, who is quick to remind them of his pride in promoting the racist/eugencist-based research of Charles Murray going all Bell Curve-y about the Richwine scandal, here. I’m sure immigrant unionists are particularly pleased....
So it was a relatively quiet week musically. I did catch my first ever Hays Carll show last Friday at City Winery. I missed out on Hays for a while, but I saw him on PBS during last year’s Americana Awards show and boy was he funny. I bought two albums of his and they were pretty funny too but also quite a bit more than that. He’s from the Steve Earle/Robert Earl Keen/Jimmy Dale Gilmore school of Texas ironic soulfulness in songwriting—Corb Lund is another member—and he’s pretty funny and charming in concert. Pretty impressive band too. If any of the above is your thing, then you’ll be glad you invested in. His website is here. Oh and “Wings over America is back,” remastered like the most recent McCartney re-releases. It’s a great album—I was there—as it pulls together much of what was great about McCartney’s early post-Beatle releases and only a few from what totally sucked (“Silly Love Songs” is bad. “Let Em In” is one of the worst songs of all time.)
That’s all. Now here’s Reed.
Obama’s Media Shield Kabuki
by Reed Richardson
In battle, assessing the true strength of one’s defenses necessitates taking full measure of the forces opposing them. Armor is only as worthy as the threats it can protect against, in other words. This is why taking cover—either physically or intellectually—behind a position that offers little to no real protection becomes twice as risky; it perpetuates a false sense of security where none exists and encourages ignorance of the real dangers lurking about.
Unfortunately, President Obama’s renewed interest in a federal media shield law this week presents just such a hazard for the press. Coming on the heels of a revelation by the Justice Department that it secretly scooped up phone records of Associated Press reporters to identify the source of a classified leak, it’s not hard to see this as a transparent ploy at damage control. (The AP story that drew the government’s scrutiny, which included leaks about how the CIA thwarted an Al Qaida bomb plot, is here.) While it may be tempting to view the passage of a media shield law as a potential silver lining to an otherwise ugly case of executive overreach, context here matters greatly. And it’s why it’s worth closely examining what the press really would—or more accurately, wouldn’t—gain if the bill gets passed.
Some background is necessary—the debate over how much constitutional protection the press enjoys regarding confidential sources was the fundamental issue in the landmark 1972 Supreme Court case of Branzburg v. Hayes. Though a majority of the Court found the press does not have an absolute privilege to withhold sources in every circumstance, an ambiguous concurrence by Justice Lewis Powell and a compelling dissenting opinion essentially snatched victory from the jaws of defeat. Thanks largely to these arguments, a large majority of states in the past forty years have been able to enact media shield laws that either do grant absolute privilege or that recognize the dissenter’s more press-friendly, multi-part test framework. (For a handy state-by-state breakdown of shield laws, check out the Reporter’s Committee for the Freedom of the Press.)
This patchwork quilt of state-based media shield laws is problematic, obviously. It punishes the press in states with less progressive legislatures, makes navigating interstate or national stories that much more difficult, and fails to address the unique circumstances in play when reporting on national security. Thus, a robust, federal version of the shield law has been a goal of free press advocates almost since the Branzburg decision came out.
Here’s the rub, though. The compromised 2009 federal media shield bill that Obama wants to revive is anything but robust and, overall, it might actually end up being a net negative for press freedom. Though a federal shield would undoubtedly help the press in the states that currently offer no source protection, the media outlets in places that already enjoy absolute privilege (12 states, including, critically, New York, as well as the District of Columbia) would experience a noticeable roll back in rights. What’s more, when it comes to national security and classified leaks, this particular bill’s language provides little more than a legal speed-bump for any overzealous government agency. And worst of all, Obama knows this.
How? Because four years ago, he was the one responsible for weakening it. The truth is, had the 2009 federal media shield law been in place last year, when the Justice Department secretly obtained the AP’s phone records, the outcome likely wouldn’t have changed. This even the bill’s chief sponsor tacitly acknowledged this past week: “Schumer himself made no claims that a shield law would have blocked the probe. Instead he says, ‘at minimum, our bill would have ensured a fairer, more deliberate process in this case.’”
Even this claim of a “more deliberate process” seems dubious, though. As the Times noted of the changes requested by the Obama administration in 2009:
[U]nder the administration’s proposal, such procedures would not apply to leaks of a matter deemed to cause ‘significant’ harm to national security. Moreover, judges would be instructed to be deferential to executive branch assertions about whether a leak caused or was likely to cause such harm, according to officials familiar with the proposal.
Previously, the government’s burden of proof had been more stringent and tangible—it would have had to document that “imminent and actual harm to national security” would result if a media source was not identified. But due to White House fears that this language afforded the press almost blanket immunity, this time-critical element was stripped out and, in its place, the government was given broad leeway to interpret a leak’s impact. Thus, the press would be left in the unenviable position of pleading a case of “he said, she said” against a national security apparatus that now enjoys the benefit of the doubt in the court’s eyes.
Sadly, this comes as no surprise from an administration that has undertaken a disturbingly aggressive approach toward leaks. Just this past Wednesday, Attorney General Eric Holder demonstrated this us-versus-them mindset during a House Judiciary Committee, where he was ostensibly advocating for press freedom:
“There should be a shield law with regard to the press’s ability to gather information and to disseminate it,” [Holder] said. “The focus should be on those people who break their oath and put the American people at risk, not reporters who gather this information.”
This statement displays a rather stunning lack of cognitive dissonance on the part of the Attorney General. But it does explain a lot about the Obama administration’s unprecedented “War on Whistleblowers” and adversarial approach toward leaks in the press. After all, an administration can hardly be expected to operate under the presumption that leakers are betraying the country and harming its security without eventually losing professional respect and judicial regard for those in the press to whom they are leaking. No matter the president’s words, all too often his administration’s actions demonstrate a contemptuous attitude toward the press for abetting these leaks.
Which us brings to the final disgrace of the media shield law—its rapidly growing irrelevance. In an environment where our sprawling national security apparatus repeatedly abuses its power and increasingly relies upon secret “215” subpoenas and gag-ordered National Security Letters (NSLs) to out confidential sources and collect data, the law represents little more than the legal equivalent of the French Maginot Line, an outdated, easily-bypassed fortification. While the revelation about Justice Department’s monitoring of the AP is shocking, it really shouldn’t be. The fact is, our government secretly gather vast troves of surveillance information about journalists (and the public) thousands of times every year without them (or us) ever knowing about it.
What impact would the proposed media shield law have on this supra-judicial spying of the media? Precious little, if any. And therein lies the trouble. Passing it would only offer a pretense of a solution to a much more insidious problem confronting our government and the press. Repairing this critical relationship requires more than Obama signing a largely symbolic piece of legislation, one that fails to honestly address our out-of-control secret surveillance state. Encouragingly, some of the excesses of our national security apparatus are finally being questioned by the courts. But unless the establishment press also refuses to be co-opted into accepting the status quo, things won’t get better for it, or for our democracy. In other words, to truly safeguard our freedom of the press, merely giving it a shield is no longer enough. We now have to start taking back the weapons our own government is using to attack it.
Contact me directly at reedfrichardson (at) gmail dot com.
Also, I’m on Twitter here—(at)reedfrich.
RE: “Why Does the Press Take the Heritage Foundation Seriously?”
Dear Mr. Richardson:
A couple of points: Immigration reform will not help Social Security or Medicare in the long run, as millions more citizens mean trillions more in unfunded liabilities, the short-term windfall notwithstanding.
Of course an expanded population typically means a bigger GDP; if America absorbed China our output and income would increase gigantically. Problem is, per capita income and production would go down in a major way.
Quite frankly, I don't give a damn about your feelings on whether Richwine used racist stereotyping. What does matter is if his arguments or numbers can be refuted. If so, well and good, we've advanced in knowledge a little. If not, we've still gotten ahead in what we know, despite liberal pieties that seem eternally meant to stifle truth.
Well, at least the PC corps got Richwine booted out. So much for the disinterested search for truth.
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