Inside the Media Shield Law That Could Do More Harm Than Good

On September 12, the Senate Judiciary Committee passed the 2013 Free Flow Of Information Act, also known as the federal “Media Shield Law.” The bill mimics some 40 similar state laws, designed to prevent federal subpoenas and other court orders from requiring journalists to divulge sources or unpublished information.

The locus of debate concerns who is and isn’t considered a journalist under the proposed law. Many big newspapers have lauded the compromise text, while some bloggers remain skeptical. Press freedom advocates have praised some of its protections, highlighting improvements over past versions. But they, too, have caveats regarding the bill’s loopholes.

The most troubling provisions include the bill’s explicit lack of protection for unaffiliated self-publishers and first-time freelancers, those involved in “national security” disclosures, and those who utilize primary source documents. Any examination of these sections must take into account the bill’s raison d’etre, as well as its likely impact on current leak cases of public import.

In a moment of damage control, the Obama White House first revived the bill in May following disclosures that the Justice Department was snooping on AP reporters and labeled a Fox News journalist as an alleged “co-conspirator” in an affidavit over the felony leak of classified material. The White House press corps was up in arms, and it seemed as if the Obama administration and congressional Democrats were offering a legislative mea culpa to make amends. President Obama has routinely cited his support for the bill as proof that his administration values leaks and whistleblowers.

But before the AP and Fox News, there was WikiLeaks.

By 2008, the Pentagon had already labeled WikiLeaks an “enemy of the state”. Following disclosures by Pvt. Chelsea Manning, government officials indulged in media campaigns to separate the whistleblowing website from other journalistic organizations, peddling a litany of falsehoods to discredit it. The U.S. government even extrajudicially pressured financial organizations like PayPal, Visa and Mastercard to cut off donations to the website and bankrupt it.

Officials were at odds over how best to legally stomp out the threat posed by WikiLeaks’ public disclosures. One method was to indict Julian Assange as a co-conspirator in the Chelsea Manning leaks, using the same legal rationale employed in the aforementioned Fox News affidavit that caused such outrage.

In May, I interviewed former general counsel for The New York Times James Goodale, who represented the newspaper in its legal battles with the Nixon administration over publication of the Pentagon Papers. Commenting on the current president’s record of attacks on the press, Goodale told me, “If Obama goes forward with the prosecution of Assange … I would say [he] easily passes Nixon in this regard.”

Fearing the indictment would be unsealed and extradition to the U.S. would ensue, Assange was granted political asylum in Ecuador in August 2012. He has remained holed up in that nation’s London embassy ever since.

In this light, it’s no wonder that another method for neutralizing the impact of WikiLeaks has made its way into the new media shield bill. The legislation includes a provision exempting organizations “whose principal function … is to publish primary source documents”. With bills of attainder forbidden by the U.S. Constitution, this clause is as close as it gets to legally separating WikiLeaks from other forms of journalism.

Furthermore, the glaring “national security” exception would relieve protections in the most pressing leak cases to date. Even the bill’s sponsor has said publicly that it would not have prevented the subpoena for AP journalists’ phone records. Nor would the protections have likely extended to James Risen of The New York Times, currently being forced by a federal court to give up sources in a CIA leak case.

And in instances not involving primary source documents or “national security,” self-publishers would also be exempt. This encompasses the case of Barrett Brown, a journalist who examined hacked emails from an intelligence contractor and published his findings on his research wiki known as ProjectPM. He now faces over 105 years behind bars on charges mostly stemming from a link he posted between chat rooms.

It’s heartening to hear that the Congress has taken up the mantle of defending press freedoms. However, as with all cases of legislative reform, it’s up to citizens to ensure that it doesn’t come out doing more harm than good.