A media shield law is a Trojan horse

If it sounds too good to be true that President Obama called for a media shield law and that Eric Holder gave it his blessing, it is. Photo: AP

NEW YORK, June 20, 2013 ― If it sounds too good to be true that President Obama has asked for a media shield law in the midst of Justice Department snooping scandals, it is. It had been reported that Obama wanted Senate Democrats to introduce a media shield law, and that Eric Holder gave it his blessing, but that turns out to be a Trojan horse. 

The administration had to at least pretend to be doing something in the wake of revelations about what the head of the AP called “a massive and unprecedented intrusion.” Comparisons to Richard Nixon were flying through a suddenly hostile press after the revelation that the Justice Department had seized two months of records from more than 20 phones lines at the Associated Press. Then came news of Justice Department snooping on Fox News’ James Rosen.

SEE RELATED: Obama’s incredible shrinking presidency

The White House had no choice but to ensure that it’s on solid legal ground with the snooping and to mitigate some of the damage. So last month at Obama’s behest, Senator Chuck Schumer introduced the most recent of Congress’ efforts to protect the media from government encroachment.

The Free Flow of Information Act of 2013, a bill similar to one that Arlen Specter floated in 2009, sets a burden of proof that the federal government would have to meet in front of a federal judge to compel the disclosure of information from the media. Major news outlets and professional organizations like the Society of Professional Journalists have endorsed that bill. And, since it requires that information seized be “tailored in the subject matter and period of time,” the Free Flow Act might have helped to limit the scope of the Justice Department’s surveillance of the AP. It might also have given the AP a chance to challenge Holder beforehand in court.

But the “exceptions” to protection under the Free Flow Act start in the middle of the first sentence and go on for the next ten pages in the kind of language that the Justice Department used to convince a judge to let it target Rosen after he reported on Operation Fast and Furious. To wit, it compels the news media to disclose to the federal government information that: 1) is essential to investigation or prosecution of a federal crime; 2) is essential to the resolution of a “non-criminal matter”; 3) is essential to “national security”; or 4) is essential to preventing or mitigating a specific case of death, kidnapping, and more. That might be enough protection for reporters covering the Westminster Dog Show, but not for those covering criminal proceedings, the Washington beat or international news.

For that reason, Schumer’s bill is more helpful to the federal government than it is to the press. That should tell us something about the possible impetus behind it. Up to now, prosecutors and other law enforcement hoping to compel media outlets to disclose sensitive information have come up against one major obstacle: the Constitution. It bars Congress from making laws that abridge the freedom of the press. And, if it’s interpreted correctly, it’s all the protection the media need. But the Free Flow Act helps the Feds to circumvent that, sneaking in some restrictions on freedom of the press under the guise of balancing “national security needs against the public’s right to a free flow of information.”

SEE RELATED: AP demands explanation from feds for phone records seizure

This bill has a minimal chance at best of passing Congress because the last thing that Washington wants to do is empower the media to report on its own incompetence and corruption. It seems more like a public relations move to help the rehabilitate the administration’s image among journalists in particular. But if a miracle happens and the Free Flow Act does get signed into law, the government will be able to claim it’s protecting the media’s right to keep sources confidential. It’ll also codify in federal law its own power to suspend that right. I’ll paraphrase Virgil on the Trojan horse here: Beware of sneaks bearing gifts.   


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Dorian Davis

Dorian Davis is an adjunct professor of journalism at Marymount Manhattan College. He’s been a contributor on politics, pop culture and social media to MTV, WNYC, NY1 and more.

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