Shield Law More Like a Cheap Umbrella

It wouldn't stop the government from spying on the press

Judith Miller, who was jailed in 2005 after refusing to reveal a confidential source (Getty Images)

Judith Miller, who was jailed in 2005 after refusing to reveal a confidential source (Getty Images)

Faced with criticism over the government’s secret spying on the Associated Press and Fox News, President Barack Obama has tried to burnish his free-press bona fides by pushing for the passage of a federal shield law to protect journalists and their confidential sources.

Without the protection of a shield law, journalists can be held in contempt of court and sent to jail for refusing to testify in court about anything—including their sources.

That is what happened to Judith Miller, the New York Times journalist who was jailed in 2005 after she refused to reveal her confidential source to a federal grand jury investigating the Valerie Plame scandal. More recently, Fox News reporter Jana Winter was threatened with jail time after she refused to reveal her source on a story about the Aurora, Colo., shooting to a judge in Colorado.

Currently, 49 states have shield laws on the books—Wyoming is the only outlier—but many are relatively weak, according to proponents of a Federal Shield Law. Colorado’s shield law, for one, isn’t much of a shield. It still allows prosecutors to force journalists to testify about their sources, so long as they have first tried “any other reasonable means” of identifying the sources.

Since Colorado prosecutors already tried and failed to identify Ms. Winter’s source, they can now demand she reveal her source or face jail time.

The proposed federal shield law before the Senate is even weaker than Colorado’s. It simply allows journalists to petition a judge, who weighs the story’s public interest value and decides whether the journalist should be forced to reveal his or her sources.

The Society of Professional Journalists, which has been pushing for shield laws, said that something is better than nothing, but it nonetheless called for stronger protections.

“Of course I’d love to see a stronger law, and I think the membership would as well,” said Sonny Albarado, national president of the SPJ. “It would be nice to have some stronger protections.”

In addition to barely protecting journalists called to testify, the bill does little to protect those journalists who write about the government. Two weeks ago, the AP revealed that the Department of Justice had secretly subpoenaed dozens of journalists’ phone records to figure out who their confidential sources in the government were. The shield law might prevent AP reporters from being forced to testify about their sources, but could it prevent the government from finding them through phone records?

“I don’t think the bill, in its current form, would protect against that,” Mr. Albarado said. What it would do: “force the Department of Justice to have a judge review the subpoena.” A judge could decide not to grant the subpoena, or to narrow its scope.

Then again, there haven’t been many indications that federal judges want to prevent the Department of Justice from investigating press sources. It was a federal judge who approved a search warrant against Fox News reporter James Rosen, which allowed the government to gain access to his private Gmail account and even track his movements. His crime? Talking to a source in the State Department who gave him confidential information.

“It’s really creepy—‘outrageous’ is the word—that the government would track his comings and goings, treating him like a spy,” said Mr. Albarado. “It’s unprecedented, and it sets a dangerous precedent.” The search warrant also named Mr. Rosen as an “aider, abettor, and/or co-conspirator,” suggesting that the government believed Mr. Rosen himself could be indicted for doing his job as a journalist.