White House Shamed Into Defending First Amendment

Obama admin previously argued against media shield law in court

Source: Flickr
May 15, 2013

Following accusations that the Department of Justice obtained the phone records of multiple members of the Associated Press, the White House is pushing to revive a federal law protecting reporters in court, the New York Times reported Wednesday.

According to reports, the White House called Sen. Chuck Schumer (D., N.Y.) Wednesday and asked him to reintroduce the Free Flow of Information Act, which shields reporters from being compelled to reveal their sources in court.

The Senate Judiciary Committee approved the Free Flow of Information Act by a 15-to-4 vote in December 2009, but a floor vote was scuttled after the Wikileaks controversy.

The White House is facing fierce criticism from the press following news that the Justice Department secretly subpoenaed the phone logs of AP reporters and editors in an attempt to track down the source of a national security leak.

"This kind of law would balance national security needs against the public's right to the free flow of information," Schumer said in a press release. "At minimum, our bill would have ensured a fairer, more deliberate process in this case."

However, the bill will likely contain a large carve-out for national security matters. The 2009 version of the legislation contained national security exemptions, which were included at the request of the White House.

Such a provision would likely not have shielded the AP from the Justice Department subpoena.

The White House’s new push for media shield laws stands in stark contrast to the administration’s actions in court against reporters. Federal prosecutors argued against journalistic privilege in the case of former CIA officer Jeffrey Sterling.

Prosecutors subpoenaed New York Times reporter James Risen for allegedly incorporating classified information he received from Sterling into a chapter of his 2006 book, State of War. The government indicted Sterling in 2010 for the unlawful disclosure of national defense information.

Federal prosecutors wrote in 2012 that Risen has no "reporter’s privilege" protecting him from revealing his sources.

"Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source," prosecutors wrote. "The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime."

The Obama administration promised during its transition period to enhance "whistle-blower laws to protect federal workers." But in the years since, the administration has charged more people under the Espionage Act—six total—than all previous administrations combined. The Espionage Act has only been enforced three other times since it was enacted in 1917.

Additionally, the Justice Department charged former CIA officer John Kiriakou in 2012 with disclosing classified information to the media. The DOJ charged former National Security Agency official Thomas Drake in another case under the Espionage Act, claiming the former National Security Agency official provided classified information to a Baltimore Sun reporter.

The government's case collapsed in 2011 and Drake pleaded guilty to one misdemeanor.

Although many states have enacted statutes—commonly called "shield laws"—protecting journalists from being compelled by courts to reveal confidential sources, there is no federal statute.

The Supreme Court ruled in the 1972 case Branzburg v. Hayes that the First Amendment does not shield reporters from federal prosecution. Federal prosecutors have argued Risen had no constitutional standing to invoke reporter’s privilege.

The White House did not return requests for comment.