Some of the senators raising objections to Sen. Chuck Schumer’s (D-N.Y.) so-called media “shield” bill may want to come up with a more coherent argument.
Take Sen. John Cornyn (R-Texas) who is quoted in a Breitbart story saying the bill “was essentially an attempt to deflect… from the Department of Justice and this administration… the criticism they were taking [from] James Rosen and other traditional journalists.”
But really, Cornyn couldn’t give a flying wit about Rosen or the Associated Press (AP), which have been targeted by the Justice Department for utilizing classified sources of information in their reporting.
Cornyn’s real objection to the bill, revealed in a Judiciary Committee minority report on November 6, 2013, is that it would “impose significant limitations upon the ability of federal prosecutors to investigate and prosecute serious crimes, including … leaks of classified information.”
So, the real objection here is that the bill would provide any shield at all to journalists, like Rosen or the AP, that report on classified issues.
And that shield would be minimal at best, since the bill would still compel journalists to furnish their sources via court order when it comes to classified documents or else face criminal contempt charges. In those cases, the burden of proof would be on the journalist to show a judge that somehow their news story served the “public interest.”
Cornyn oddly complains that “They want to pick and choose which journalists are covered. In other words, if you’re a blogger they might not cover you, but if you work for the New York Times they might. Given the changes in the way we get information and the way we consume news, that really smacks to me in essence of government licensing who’s an official ‘journalist’ for the purposes of a shield law and who’s not.”
“It’s totally inconsistent with the notion of a free press and the First Amendment,” Cornyn added.
Yet, based on Cornyn’s minority report objection, that providing any shield could harm leak investigations, he likely would be no happier if the bill extended “covered” journalist status to every single American citizen or anyone with a blog, because then the minimal shield provided would cover millions of people instead of just several thousands.
He’s right to oppose the bill, but it appears to be for all of the wrong reasons.
The problem with the bill, if anything, is it is designed to crack down on the unlawful disclosure of classified information, and to force journalists, whether they’re “covered” or not, to disclose their sources in cases as it relates to the publication of classified material.
In turn, it would undoubtedly dry up the publication of any documents the government does not want out there that in the past have proven to be critical in exposing abuses by intelligence agencies and federal courts (like the FISA court) in issuing general warrants for, say, everyone’s phone records.
What the legislation does is say if you’re an anonymous whistleblower, and you know crimes have been committed, leaking the information to the press will create the legal basis for going after the journalist who reports the story, and then after you. Since most whistleblowers will not pull an Edward Snowden and say “Here I am!” this will undoubtedly have a chilling effect on similar press reports in the future, raising significant First Amendment concerns.
Meanwhile, one of the reasons the bill attempts to create a distinction about who is a journalist is to apparently reserve the right to go after, say, Julian Assange or Glenn Greenwald or, to quote the legislation “any person or entity — whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.”
Even Chuck Schumer admitted it wouldn’t cover Greenwald: “It’s probably not enough protections to (cover) him.”
So, where is Cornyn on this issue? That Greenwald should be protected because the government shouldn’t get to “pick and choose which journalists are covered”? Or that he shouldn’t be because it would “impose significant limitations upon the ability of federal prosecutors to investigate and prosecute … leaks of classified information”?
On one hand, it is perfectly principled to say there should be no shield for journalists because it incentivizes the disclosure of classified information. If nothing else, that’s an argument.
But to then pretend it is because the minimal protections afforded to journalists — which Cornyn objects to — are not extended to bloggers as well is incoherent at best and disingenuous at worst.
Robert Romano is the senior editor of Americans for Limited Government.
