Last week, the Senate Judiciary Committee passed something called the Free Flow of Information Act, which will create a “privilege” for journalists, protecting them from being compelled to reveal their confidential sources by federal courts.
The Jim Lehrer NewsHour took up the issues of this “shield law” on Thursday (no transcript or audio file yet available online), featuring, in support of the bill, Lee Levine, a First Amendment lawyer who has represented journalists in some high-profile cases, and, in opposition, Rachel Brand, who until July was the assistant attorney general for legal policy at the Department of Justice.
Brand did a competent job holding up her side of the argument, explaining that subpoenas compelling journalists to disgorge their sources are rare, and that the Justice Department has its own stringent internal guidelines that vitiate the need for the law now moving forward in the Senate.
But Brand was playing defense throughout. The crucial moment arose when the host of the segment, Jeffrey Brown, asked his two guests a good question: is it not true that, even in the absence of a law shielding journalists, a great many stories based upon classified governmental information are still being written?
Levine responded by pointing out that “you never know what you don’t see on your television screen and what you don’t read in your newspaper,” and if one studies the record, “you will hear about stories that weren’t written, about sources that wouldn’t come forward because they were afraid that their identities would be revealed. And that’s a great loss.”
True enough, in the absence of a shield law, some stories will not get written. But is that “a great loss” to the public, or a great gain?
Under discussion here, as seems to have been forgotten by everyone, is that government officials who leak sensitive classified material are breaking oaths of secrecy and violating the law. Does the American public want more leaks that compromise vital counterterrorism operations, like the New York Times report on the SWIFT banking program that tracked al Qaeda financial transactions or, before that, its disclosure of the NSA’s program to monitor the international communications of terrorists?
As I have argued here, a shield law will enable leakers–typically, government bureaucrats who are elected by no one and who have political agendas of their own–to break the laws governing classified information with impunity. In that sense, the Free Flow of Information Act is aptly named.
