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posted: 5/26/2013 5:02 AM

Analysis: First amendment protects more than the press

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By Stephen L. Carter, Bloomberg News

The Obama administration announced that it is throwing its support behind the press shield law that has been stalled in Congress since time immemorial. Critics insist that the administration, suddenly mired in scandal, is simply trying to curry favor with the news media, but the proposal deserves to be judged on its merits.

And on its merits, the shield law is a bad idea. Let me explain why.

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I believe that the First Amendment is the single most important provision in the Constitution. Part of what makes it so is that it protects all Americans -- not just journalists.

The avowed purpose of the shield law is to make it difficult for the government to compel testimony from journalists. It is self-evident that being forced to disclose confidential information would make it harder for reporters to do their jobs. In effect, the risk of compelled disclosure increases the cost of journalism.

A useful analogy is the case of NAACP v. Alabama, decided 55 years ago, in which the Supreme Court held that forced disclosure of membership lists would burden the freedom of association. This seems plainly correct. If all the world can know which organizations you join, your cost of membership is effectively increased. That, wrote the justices, the Constitution does not allow the state to do.

Very well. If compelling journalists to disclose their sources is analogous to compelling members of an interest group to disclose their membership, what's wrong with the shield law? The answer, as the late Judge Bailey Aldrich wrote in a different context, is that "the statute is not too happily drafted."

There are several versions of the shield law pending in Congress. The one that seems to have the most support is grandiloquently titled the "Free Flow of Information Act." But this bill, much like the guidelines on which the Justice Department was supposed to rely before seizing telephone records of Associated Press reporters, is chock-full of exceptions -- particularly for national security cases.

The statute, in any case, says only that the government can't subpoena documents or testimony from journalists until it has exhausted other reasonable means of getting the same information. In a saner world, this would be a universal standard -- but it probably wouldn't be a significant change for the practice of journalism. Even in the absence of a shield law, most prosecutors are too savvy to go after journalists. The price can be too high. If a prosecutor does decide to try to pry a source out of a reporter, chances are he has indeed run out of other ideas.

Put otherwise, the protections themselves might change the status quo only a little. And there is reason to think that the shield law, even if it existed, would have offered scant protection to the AP.

But the rather limited effect isn't the largest problem with the proposed statute. After all, the protections can always be strengthened. The larger problem is the class the bill would protect. The protection applies only to a "covered person," and a covered person is defined with disturbing narrowness:

"A person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person."

Let's think about this definition for a moment. Consider a whistle-blower, A, who tells B of something nefarious going on at a hypothetical federal agency, which we'll call the Internal Revenue Service. B in turn tells the world. Scandal ensues. Investigations, denunciations, calls for reform. As matters unfold, a prosecutor decides that his case requires the identity of the leaker. Should a subpoena be issued?

The statute, as written, would permit the subpoena if B is, say, a blogger who obtains no income from her writing, or a wealthy philanthropist who distributes a newsletter but derives no income from it, or a law student using the information as the basis of a project to be published in her school's law review. One cannot make a serious case that any one of these forms of publication contributes less to public debate and the public good than the coverage of the same news on television or in a newspaper. A different distinction is necessary.

The obvious argument therefore has to do with the chilling effect -- that is, intimidating professional journalists is more dangerous to public debate than frightening bloggers or philanthropists or law students. This is a scary reading of the First Amendment, which does not on its face divide free speakers into different classes -- but that's not the main problem with the argument.

The main problem is that the statute, by protecting only those who commit journalism professionally, would drive a fully informed and rational leaker to go to a reporter for a mainstream media organization rather than to a blogger or a law student. To which you might say: So what? Maybe it's better that the leak be published in The New York Times or broadcast on CBS.

Maybe -- but do we really want the government, as a matter of policy, making judgments about where leakers ought to be encouraged to leak? By raising the costs on others who would cover the news, the shield law in effect subsidizes the working press. It isn't at all clear why this is a proper government function.

The shield law can be improved. There's no good reason to limit its coverage to a person who "regularly" engaged in the spectrum of activities that it protects -- because it is the activities, not their regularity, that are crucial to the functioning of the democratic process. An accountant who writes only a single op-ed article in her lifetime, and therein discloses what she was told by a confidential source, is potentially providing as vital a service as any working journalist.

And, certainly, there is no justification for the limit of coverage to one who engaged in these activities "for a substantial portion of the person's livelihood or for substantial financial gain." One would think that people who give information away free would receive, if anything, greater solicitude from government. The provision limiting protection to those who make money from disseminating information should be deleted entirely.

I have heard it said that a more broadly worded statute would never pass, not least because media companies might yank their support. Let's hope this isn't true, because if it is, it's hardly an argument in favor of the Free Flow of Information Act. It would instead be evidence that the statute itself is an elaborate form of rent-seeking in the guise of protecting sources.

• Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of "The Violence of Peace: America's Wars in the Age of Obama," and the novel "The Impeachment of Abraham Lincoln."

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