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Ivan Eland is a senior fellow with the Independent Institute and author of “War and the Rogue Presidency.” He wrote this for InsideSources.com.
Like it or not, the Constitution’s First Amendment gives the media special protection in the American republic. That amendment says, “Congress shall make no law … abridging the freedom … of the press.”
With one of the recent presidential candidates unconstitutionally threatening to shut down media outlets or take away their (nonexistent) licenses when they say or do something he doesn’t like, it is not hard to imagine him in office trying to ferret out government whistleblowers by applying legal coercion to force members of the press to cough up their sources. In fact, this candidate, when he was president previously, did precisely that, as did his predecessor from the opposite party to an even greater extent.
Forty-nine states and the District of Columbia have laws or state court rulings that shield reporters from such government coercion. Despite the special protection of the media by the Constitution at the national level, no similar federal law exists to provide the same safeguard. Thus, federal Circuit Courts of Appeals rulings have had to give some stopgap protection.
Why is a federal shield law for reporters needed? If the government cannot keep its essential information under wraps, then the press should be free to publish it for public inspection. However, the government doesn’t see it that way, and it has plenty of coercive legal power to subpoena reporters of leaked information to divulge their sources so that any government leaker can be prosecuted.
And legally, if reporters gather or transmit vaguely defined “national defense information” from leakers or whistleblowers, the journalists can risk being prosecuted criminally through the Espionage Act of 1917; only tradition has circumscribed the prosecution of reporters under the law. Of course, the general lack of protection for reporters’ sources dissuades such federal whistleblowers from talking to reporters about wrongdoing or corruption in government. Even in a republic, the public should be aware that plenty of corruption and skullduggery exist in government.
A proposed federal shield law, the PRESS (Protect Reporters from Exploitative State Spying) Act, is going through Congress and passed by the House of Representatives unanimously twice (an unusual feat of consensus in today’s polarized political world). However, the bill has been opposed in the Senate by a small group of members because it could encourage leaks of national security and law enforcement information. Yet, the bill has exceptions to force reporters to divulge sources to prevent any acts of terrorism or imminent violence and does not provide immunity to reporters who commit illegal acts to obtain information (such as hacking, etc.).
Also, it is widely acknowledged that much overclassification exists in information classified by the feds for “national security” reasons and that classification can be flagrantly abused to hide information that is embarrassing to the government.
Finally, the few senators objecting to the bill claim to be constitutional textualists and originalists. Yet, the First Amendment’s prohibition on abridging the freedom of the press mentions no exception for “national security.”
Besides, the government has so much coercive power that it can often find leakers and prosecute them without intimidating reporters to divulge their sources. With any federal shield law, it may seem that reporters have been designated as a special class of citizens, but the First Amendment already realizes that keeping a vibrant republic demands special protections to maintain a free press. (In the internet era, however, any conception of journalists may need to be widened to include new forms of the profession.)
And those safeguards for the press may be especially needed if a candidate is elected who parrots Joseph Stalin by deeming the press “an enemy of the people” and regularly threatens media outlets with retribution and coercion.
