EDITORIAL: Federal shield law would safeguard democracy

June 17, 2013 

Journalists shouldn't be prosecuted for doing their jobs. It's past time to enshrine that principle with a federal shield law to protect reporters and confidential sources.

If there were any question a law is needed, the U.S. Justice Department removed all doubt by overreaching in two recent leak investigations.

First, the Associated Press disclosed that federal prosecutors had seized the call logs from more than 20 of its phone lines, looking for leads on who leaked classified details about a CIA operation that targeted terrorist bomb makers.

Then, court papers revealed that the FBI had obtained a search warrant to read the private emails of Fox News reporter James Rosen as part of gathering evidence against a State Department contractor accused of sharing intelligence that North Korea would likely conduct another nuclear test if the United Nations condemned prior ones. The warrant suggested that Rosen could be prosecuted under the 1917 Espionage Act, which has never been used against a reporter.

Amid the furor, President Barack Obama again pledged his support for a shield law, saying he understood the importance of journalists watching over the government. Now, he has to show it wasn't just a public relations move.

S. 987, the Free Flow of Information Act of 2013, was introduced May 16 by Sen. Charles Schumer, a New York Democrat, and sits in the Senate Judiciary Committee. So far, it has 16 co-sponsors -- four Republicans and 12 Democrats, including Sen. Barbara Boxer of California, but not Judiciary Chairman Patrick Leahy. That does not bode well for passage.

The bill would require law enforcement to try every other avenue to obtain information before seeking judicial approval to seize records from journalists. Reporters could appeal to federal judges, who would have to balance the government's need for information against the public interest in newsgathering. California and 48 states have similar protections for reporters.

But there should be no illusions that even if S. 987 does become law, it would protect reporters in every case. Schumer's bill specifically exempts cases involving terrorism or threats to national security.

In the real world, the safeguard is for prosecutors to be very cautious in going after reporters and their sources. During the "war on terror," the Obama administration has been far too aggressive.

Is there much doubt that if Edward Snowden had not outed himself as the leaker on the government's secret surveillance programs, Attorney General Eric Holder would not be going after the journalists who received Snowden's information?

One can argue whether Snowden is a principled hero or a reckless publicity seeker jeopardizing national security.

But the chilling effect that occurs when federal prosecutors go after journalists for just doing their jobs is indisputable. That's dangerous for democracy, which is why Congress must pass a shield law.

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