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Balancing free speech and accountability

"Balancing free speech and accountability" Continued...

But it’s not clear that Schumer’s law would have prevented the seizure of Rosen’s emails or the AP phone records, given the national security exemption. And the potential effects of a shield law are a mixed bag, at best.

The defining U.S. Supreme Court ruling on whether the government can force reporters to give up sources is Branzburg v. Hayes, delivered in 1972. That 5-4 ruling found no special constitutional right for reporters to withhold sources from a grand jury. Just like any other citizen, reporters must answer questions under oath to ensure that courts can administer justice.

The dissenters wrote that reporters should be able to protect confidential sources unless the government can show that information in which the state has a compelling interest can’t be obtained any other way.

But the swing vote, Justice Lewis Powell, sided with the majority and then wrote a concurring opinion that seemed to side with the dissenters, saying that if circumstances had been different he might have voted for what is now known as a “reporter’s privilege.” Subsequent rulings from lower courts have followed Branzburg in grand jury cases, but a few have fashioned a kind of common law-based right to protect sources in criminal cases, and many courts regularly recognize a reporters’ privilege in civil cases.

Most in the news media are dissatisfied with this compromise, and so advocate for a federal shield law. But a handful of critics, such as the Washington Post’s Walter Pincus, have pointed out that the main problem with shield laws is defining the term journalist. Do pajama-clad bloggers count as reporters, and what qualifies as a news organization?

Moreover, giving the government power to define who qualifies as a journalist—and whose speech is therefore more free—would allow the government to take for itself new powers that could be used to restrict First Amendment rights in other ways.

Another problem: Shield laws help journalists keep government accountable, but they make it much harder to keep journalists accountable and root out those who leak information for their own benefit. As New York Times columnist Anthony Lewis pointed out in 2007, under current libel law, a reckless or dishonest reporter need only cite “unnamed” sources for his false and defamatory material and then refuse to give up names to avoid paying damages to his victims.

It’s uncertain where the debate will go from here. The 2009 attempt to pass a federal shield law collapsed after colliding with the news that Pfc. Bradley Manning sent hundreds of thousands of classified documents to the anti-secrecy website WikiLeaks. His court martial trial began Monday. President Obama has asked the Justice Department to review its subpoena guidelines for journalists and report back to him by July 12.

The Associated Press contributed to this report.

Les Sillars
Les Sillars

Les directs the journalism program at Patrick Henry College in Purcellville, Va., and is the editor of WORLD's Mailbag section.

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