In 2006, Grady College journalism professor William E. Lee published “The Priestly Class: Reflections on a Journalist’s Privilege” in the Cardozo Arts and Entertainment Law Journal. The journal’s editors asked him to update the article for a special symposium issue. His updated article, “The Demise of the Federal Shield Law” explains why Congress failed to enact federal protection for journalist-source relationships.
Columns: The level of interest around enacting a federal shield law has fluctuated for the past 40 years. Why has there been so much recent attention given to enacting it?
Lee: In the early 1970s, Congress strongly considered a federal shield law; this effort collapsed because news organizations couldn’t agree on whether the law should be absolute or qualified, with the Nixon Department of Justice opposing the proposed legislation. Also, by the mid-1970s federal courts began crafting a First Amendment-based journalist’s privilege. This judicially-created privilege was very fact and context specific, but many journalists began to erroneously believe they had a broadly applicable First Amendment-based privilege. In a series of cases in 2004 and 2005, most notably involving Judith Miller of the New York Times, journalists found the judicial position had changed, and now their First Amendment-based privilege was not so apparent. Miller went to jail for refusing to answer a grand jury’s questions about her confidential sources in the White House. With Miller in jail, news organizations began an intensive lobbying campaign to get Congress to offer the protection that federal courts were no longer willing to provide. This campaign especially resonated with Democrats who argued confidential source relationships are necessary for journalists to expose official wrongdoings, as seen with the Bush administration’s warrantless wiretapping program.
Columns: How did the Bush administration respond?
Lee: With a veto threat. Key Bush administration officials feared the shield proposals would encourage leaks harmful to national security. Moreover, they claimed the proposed definition of a journalist was so broad as to offer protection for terrorists and terrorist organizations. Although the House of Representatives approved a shield bill in October 2007, the threat of a presidential veto killed this bill.
Columns: What were the responses of the Obama administration to the shield proposals?
Lee: Barack Obama became the first presidential candidate to publicly support a federal shield law and the House again passed a shield bill in March 2009. As the Senate was considering this bill, the Obama administration announced it was taking a harder approach when dealing with issues of national security. Consequently, the Obama administration and key Senate Democrats reached a compromise providing that reporters would have to testify in leak cases involving significant harm to national security. Moreover, the definition of journalist became narrower, not applying to terrorists and terrorist organizations. This was approved by the Senate Judiciary Committee in early December 2009; due to Senate attention to more pressing matters such as health-care reform, the shield bill was not considered by the full Senate in the last days of 2009.
Columns: With so much support surrounding the shield bill in 2009, why wasn’t it then passed in 2010?
Lee: The outlook for the shield law was strong in 2010 until Wikileaks began posting expansive amounts of classified U. S. documents relating to military actions and diplomatic efforts.
Support for a shield bill suddenly deteriorated and a broad consensus emerged in both parties—the leaks had gotten out of hand. Although Sen. Schumer—a key sponsor of the shield bill—announced he would add specifications to the bill explicitly excluding organizations like Wikileaks, the damage had been done. When Republicans regained control of the House after the 2010 elections, legislative priorities shifted and when Rep. Mike Pence reintroduced a shield proposal in 2011, he was unable to attract any co-sponsors.
Columns: Does support for a shield bill break along party lines?
Lee: Generally, yes in the House and Senate.
I have been amazed, though, at how the Obama administration has followed the broad national security concerns of the Bush
The proposed shield bills were largely designed by Democrats to encourage exposure of scandals and corruption in government, even if this meant violation of laws concerning unauthorized disclosure of classified information.
Republican opposition, however, focused on the idea that there is no virtue in leaking and it should be punished. . .
Wikileaks caused many Democrats to back away from anything that promotes leaks. As long as Republicans control the House, and the illegality of unauthorized disclosures of classified information is a central plank of Republican opposition to a shield bill, prospects are nil.