Commentary Magazine


Topic: shield law

FCC’s Unforgiveable CIN

There’s no such thing as the government “just asking questions.” That’s something both the public and the country’s news organizations should keep in mind as they read Ajit Pai’s important piece in the Wall Street Journal today. Pai is one of five commissioners of the Federal Communications Commission, the agency charged with regulating and licensing broadcast media, and he is rightfully disturbed by one of the FCC’s current projects.

Known as “Multi-Market Study of Critical Information Needs” (CIN), the FCC’s latest bright idea is to send representatives to press outlets to grill them on story selection and “perceived station bias,” among other red flags. Of course, the agency is going in with its own ideas about what such terms mean. Pai notes that a field test of this program is scheduled for this spring. He continues:

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There’s no such thing as the government “just asking questions.” That’s something both the public and the country’s news organizations should keep in mind as they read Ajit Pai’s important piece in the Wall Street Journal today. Pai is one of five commissioners of the Federal Communications Commission, the agency charged with regulating and licensing broadcast media, and he is rightfully disturbed by one of the FCC’s current projects.

Known as “Multi-Market Study of Critical Information Needs” (CIN), the FCC’s latest bright idea is to send representatives to press outlets to grill them on story selection and “perceived station bias,” among other red flags. Of course, the agency is going in with its own ideas about what such terms mean. Pai notes that a field test of this program is scheduled for this spring. He continues:

How does the FCC plan to dig up all that information? First, the agency selected eight categories of “critical information” such as the “environment” and “economic opportunities,” that it believes local newscasters should cover. It plans to ask station managers, news directors, journalists, television anchors and on-air reporters to tell the government about their “news philosophy” and how the station ensures that the community gets critical information.

The FCC also wants to wade into office politics. One question for reporters is: “Have you ever suggested coverage of what you consider a story with critical information for your customers that was rejected by management?” Follow-up questions ask for specifics about how editorial discretion is exercised, as well as the reasoning behind the decisions.

Participation in the Critical Information Needs study is voluntary—in theory. Unlike the opinion surveys that Americans see on a daily basis and either answer or not, as they wish, the FCC’s queries may be hard for the broadcasters to ignore. They would be out of business without an FCC license, which must be renewed every eight years.

Pai recalls the FCC’s thuggish Fairness Doctrine, through which unelected bureaucrats were given the power to micromanage news content. The Fairness Doctrine was beloved by liberals, especially in recent decades as the left’s media dominance was challenged by the discovery that if given a choice, no one wanted to listen to them. The left’s response to losing an argument is to have the government shut down the other side, and there were hopes among Democrats that the Fairness Doctrine could be used to crack down on the First Amendment rights proving so bothersome to them.

But there’s another context for this FCC stunt: the debate over a so-called shield law for journalists. As I noted back in July, there is a congressional effort led by Democratic Senator Dick Durbin to pass legislation that would put on the books a federal law–most of the states already have such laws–to “shield” reporters from having to divulge sources. It is carried out ostensibly under the banner of protecting the press and therefore defending the First Amendment.

If only. In truth, there are two main problems with a federal shield law that would render it harmful to freedom of the press. The first is that in order to legislate protections for a specific group, you have to define that group. That means for a federal shield law, the government would get to be the final arbiter on the question of who is a journalist. Thus the government could easily play favorites and have yet another accreditation–not unlike an FCC license, in a way–to hold over the heads of the press.

The second problem with a federal shield law is that there would almost certainly be vague national-security carve-outs, which are often couched in terms like “compelling public interest.” That means the protections would likely evaporate anyway in most high-profile cases. The shield law, then, would be corrosive to the protections currently afforded the press.

It is such rules the FCC’s CIN calls to mind. It opens the door to increased government scrutiny of the press, with an implicit threat to a broadcaster’s license. It does so under the guise of public service and quality control and fairness and other terms that usually hint the government is up to no good. And if established without challenge, it would grant the premise that news judgment is the FCC’s business.

Perhaps this can still be avoided if the press puts up a united front against this intrusion, but the implicit threat is already out there. The media should be able to tell the FCC to get lost on this one. In a perfect world, of course, they wouldn’t have to.

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Should the Government Decide Who Is a “Legitimate” Journalist?

In mid-May, as the IRS scandal finally warranted comment from President Obama, the president gave what would become an oft-repeated and justly mocked response: he learned about it on the news. But while mainstream news publications were indeed carrying the story, the Huffington Post’s media reporter Michael Calderone noted that the national political press had picked up on the story long after conservative blogs did.

The Blaze, Calderone said, raised the prospect that pushy and prying IRS agents seemed to be targeting conservative groups—in early 2012, more than a year before Obama was enlightened by the press. Two weeks after the Blaze report, Colleen Owens blogged about the letters the IRS office in Cincinnati was sending Tea Party groups, and she followed up with more reporting on the issue. Calderone’s explanation of Owens’s work is significant in light of a recent legislative push by Democratic Senator Dick Durbin. First, Calderone’s description of Owens:

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In mid-May, as the IRS scandal finally warranted comment from President Obama, the president gave what would become an oft-repeated and justly mocked response: he learned about it on the news. But while mainstream news publications were indeed carrying the story, the Huffington Post’s media reporter Michael Calderone noted that the national political press had picked up on the story long after conservative blogs did.

The Blaze, Calderone said, raised the prospect that pushy and prying IRS agents seemed to be targeting conservative groups—in early 2012, more than a year before Obama was enlightened by the press. Two weeks after the Blaze report, Colleen Owens blogged about the letters the IRS office in Cincinnati was sending Tea Party groups, and she followed up with more reporting on the issue. Calderone’s explanation of Owens’s work is significant in light of a recent legislative push by Democratic Senator Dick Durbin. First, Calderone’s description of Owens:

Owens, a stay-at-home mom with no professional journalism experience, told The Huffington Post that she was especially interested in the 2012 IRS letters because of a couple previous instances in which she felt tea party activists were unfairly targeted. She said the IRS sent a similar list of demands in 2011 to organizers of the Virginia Tea Party Convention. Richmond Tea Party, Owens’ local chapter at the time, was audited by the city that same year.

Following the Richmond city audit, Owens asked Jeff Bayard, a friend and the publisher of Right Side News, if she could submit an article on behalf of the Richmond Tea Party. That story, published in Nov. 2011, got picked up by The Drudge Report, and Owens did a couple Fox News interviews.

When learning a few months later about tea party groups receiving IRS letters, Owens said she “started immediately researching, knowing this sounded like a huge story.” She went back to Bayard — on her own, not on behalf of a specific tea party group — and Right Side News published her second story, which included PDFs of letters that groups had received.

“I’m really just an amateur that wanted to write about stories that I thought were big stories,” Owens said, adding that she “just felt like, as a citizen, this was an important story.”

Keep those phrases in mind—Calderone’s description of Owens as a “stay-at-home mom with no professional journalism experience,” and Owens’s contention that she is “really just an amateur that wanted to write about stories that I thought were big stories”—as you read through Dick Durban’s op-ed in the Chicago Sun-Times about a federal shield law.

The law would carve out specific protections for journalists to be exempted from having to divulge their sources. Reporters, especially those who cover national politics, would struggle to do their jobs if they couldn’t publish information provided to them anonymously. The concern is that if journalists couldn’t protect their sources, there would be a “chilling effect” on the public’s access to information, especially in cases when the source could be fired or prosecuted (or both) for divulging the information.

Most states already have such shield laws on the books, but Durbin wants a federal law. The problem is that in order to produce this law, the federal government would have to legally define who is a journalist, and who isn’t. And there would almost certainly be a national-security exception to the law (what’s often referred to legislatively as a “compelling public interest”), so the bill wouldn’t change much in practice. That means the federal shield law would really only serve to exclude from existing protections those Durbin and his colleagues don’t consider real journalists.

And that’s not an exaggeration, either. The headline of Durbin’s column is “Sen. Dick Durbin: It’s time to say who’s a real reporter.” It should be noted that the national-security exemptions are not without their merit, either. Even in this age of disclosure and transparency we should remember that there are plenty of secrets that benefit the public only by remaining secret. The government may be in the habit of over-classifying information, but that is not universally true.

Durbin asks: “But who should be considered to be a journalist?” He then seeks to answer his own question:

A journalist gathers information for a media outlet that disseminates the information through a broadly defined “medium” — including newspaper, nonfiction book, wire service, magazine, news website, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.

Take a look at that definition, and try to guess whether someone like Owens would qualify. But as Calderone noted, Owens was the one reporting on the IRS story before those Durbin would consider “real journalists.” What if Owens found herself seeking to protect a source? This isn’t just about the occasional conservative blogger, either—though Durbin’s criteria would obviously benefit the largely liberal mainstream press. Last year the Romney presidential campaign sought to exclude BuzzFeed, a website that was at the time relatively new to political reporting, from the campaign’s press pool.

Calderone reported on this controversy as well, and pointed out that the journalists covering the campaign were uncomfortable with the politician, instead of the political press, determining who qualifies as a legitimate news source. A Romney spokeswoman told Calderone: “We do not have a separate blogger pool report.” Calderone continued:

Saul’s comment suggests the campaign may consider BuzzFeed a blog and, for that reason, not eligible to be in the print pool. While BuzzFeed reporters write exclusively online, so do others in the “print” pool, such as The Huffington Post and Yahoo! News. Also, newspaper reporters routinely file dispatches from the trail that only appear online.

It’s not so simple, in other words, to draw that line. And politicians don’t appear to be the best qualified to make that decision. They are often less informed on the changing digital media landscape than news consumers, and they have an obvious interest in excluding some journalists or news outlets from press protections.

Again, that doesn’t mean journalists should always be exempted from the laws that their fellow citizens are held to. And there is no doubt that cases of “compelling public interest” are not automatically a figment of Big Brother’s imagination; they exist. But in a country with robust free-press protections enshrined in the Constitution, asking the United States Senate to narrow those protections seems like a recipe for trouble.

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The Free Flow of Classified Information Act

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

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Announcing JAPSL

Is it illegal or unethical to establish an organization and list members who have not chosen to join? I don’t know the answer but intend to find out. Today I am announcing the formation of JAPSL, Journalists Against Press Shield Laws.

JAPSL is badly outnumbered. Almost every media corporation in the country is backing the establishment of a shield law. So too are numerous lobbying organizations that purport to defend the First Amendment. The House of Representatives has already passed a shield-law bill by a bipartisan landslide margin of 398 to 21. The Senate may act on the matter at some point soon.

I am the founding executive director of JAPSL and my arguments against a shield law can be found in Commentary and the Weekly Standard.

According to JAPSL’s bylaws, there are two categories of members: those whom I induct (regular members), and those whom I induct who then object to being inducted (objecting members).

The roster of regular members of JAPSL spans the political spectrum and includes a number of distinguished writers from leading publications. So far, these include:

Jack Shafer of Slate, author of We Don’t Need No Stinkin’ Shield Law.

Steven Chapman of the Chicago Tribune, author of The News Media vs. the Innocent.

Anthony Lewis, formerly of the New York Times, author of Freedom For the Thought We Hate.

Walter Pincus, of the Washington Post, who has challenged the idea of a shield law in the Nieman Watchdog.

As of yet, JAPSL has no objecting members. To become a regular or an objecting member, simply post a comment below indicating either your desire to join or your wish to object to being inducted into this vital organization.

Is it illegal or unethical to establish an organization and list members who have not chosen to join? I don’t know the answer but intend to find out. Today I am announcing the formation of JAPSL, Journalists Against Press Shield Laws.

JAPSL is badly outnumbered. Almost every media corporation in the country is backing the establishment of a shield law. So too are numerous lobbying organizations that purport to defend the First Amendment. The House of Representatives has already passed a shield-law bill by a bipartisan landslide margin of 398 to 21. The Senate may act on the matter at some point soon.

I am the founding executive director of JAPSL and my arguments against a shield law can be found in Commentary and the Weekly Standard.

According to JAPSL’s bylaws, there are two categories of members: those whom I induct (regular members), and those whom I induct who then object to being inducted (objecting members).

The roster of regular members of JAPSL spans the political spectrum and includes a number of distinguished writers from leading publications. So far, these include:

Jack Shafer of Slate, author of We Don’t Need No Stinkin’ Shield Law.

Steven Chapman of the Chicago Tribune, author of The News Media vs. the Innocent.

Anthony Lewis, formerly of the New York Times, author of Freedom For the Thought We Hate.

Walter Pincus, of the Washington Post, who has challenged the idea of a shield law in the Nieman Watchdog.

As of yet, JAPSL has no objecting members. To become a regular or an objecting member, simply post a comment below indicating either your desire to join or your wish to object to being inducted into this vital organization.

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The News Media vs. the Innocent

Should Congress enact a “shield law” for journalists, exempting them from the obligation to disclose their confidential sources to grand juries investigating crimes and in court cases?

I have explored some of the implications of such a law for our national security. But there is a civil-court dimension to the problem as well. In The News Media vs. the Innocent, Steve Chapman gets to the essence of it in today’s Chicago Tribune.

Years ago, Ray Donovan, Ronald Reagan’s labor secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, “Which office do I go to to get my reputation back?”

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the Sept. 11, 2001, attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died.

In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the Army, a “person of interest.” Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, the New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have “destroyed his life” even though “there’s not a scintilla of evidence to suggest Dr. Hatfill had anything to do with” the anthrax attacks.

To read the rest of Chapman’s column, click here.

Should Congress enact a “shield law” for journalists, exempting them from the obligation to disclose their confidential sources to grand juries investigating crimes and in court cases?

I have explored some of the implications of such a law for our national security. But there is a civil-court dimension to the problem as well. In The News Media vs. the Innocent, Steve Chapman gets to the essence of it in today’s Chicago Tribune.

Years ago, Ray Donovan, Ronald Reagan’s labor secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, “Which office do I go to to get my reputation back?”

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the Sept. 11, 2001, attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died.

In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the Army, a “person of interest.” Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, the New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have “destroyed his life” even though “there’s not a scintilla of evidence to suggest Dr. Hatfill had anything to do with” the anthrax attacks.

To read the rest of Chapman’s column, click here.

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James Risen in Chains

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.

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A Bad Idea Whose Time Has Come

Last week, the Senate Judiciary Committee passed something called the Free Flow of Information Act, which will create a “privilege” for journalists, protecting them from being compelled to reveal their confidential sources by federal courts.

The Jim Lehrer NewsHour took up the issues of this “shield law” on Thursday (no transcript or audio file yet available online), featuring, in support of the bill, Lee Levine, a First Amendment lawyer who has represented journalists in some high-profile cases, and, in opposition, Rachel Brand, who until July was the assistant attorney general for legal policy at the Department of Justice.

Brand did a competent job holding up her side of the argument, explaining that subpoenas compelling journalists to disgorge their sources are rare, and that the Justice Department has its own stringent internal guidelines that vitiate the need for the law now moving forward in the Senate.

But Brand was playing defense throughout. The crucial moment arose when the host of the segment, Jeffrey Brown, asked his two guests a good question: is it not true that, even in the absence of a law shielding journalists, a great many stories based upon classified governmental information are still being written?

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Last week, the Senate Judiciary Committee passed something called the Free Flow of Information Act, which will create a “privilege” for journalists, protecting them from being compelled to reveal their confidential sources by federal courts.

The Jim Lehrer NewsHour took up the issues of this “shield law” on Thursday (no transcript or audio file yet available online), featuring, in support of the bill, Lee Levine, a First Amendment lawyer who has represented journalists in some high-profile cases, and, in opposition, Rachel Brand, who until July was the assistant attorney general for legal policy at the Department of Justice.

Brand did a competent job holding up her side of the argument, explaining that subpoenas compelling journalists to disgorge their sources are rare, and that the Justice Department has its own stringent internal guidelines that vitiate the need for the law now moving forward in the Senate.

But Brand was playing defense throughout. The crucial moment arose when the host of the segment, Jeffrey Brown, asked his two guests a good question: is it not true that, even in the absence of a law shielding journalists, a great many stories based upon classified governmental information are still being written?

Levine responded by pointing out that “you never know what you don’t see on your television screen and what you don’t read in your newspaper,” and if one studies the record, “you will hear about stories that weren’t written, about sources that wouldn’t come forward because they were afraid that their identities would be revealed. And that’s a great loss.”

True enough, in the absence of a shield law, some stories will not get written. But is that “a great loss” to the public, or a great gain?

Under discussion here, as seems to have been forgotten by everyone, is that government officials who leak sensitive classified material are breaking oaths of secrecy and violating the law. Does the American public want more leaks that compromise vital counterterrorism operations, like the New York Times report on the SWIFT banking program that tracked al Qaeda financial transactions or, before that, its disclosure of the NSA’s program to monitor the international communications of terrorists?

As I have argued here, a shield law will enable leakers–typically, government bureaucrats who are elected by no one and who have political agendas of their own–to break the laws governing classified information with impunity. In that sense, the Free Flow of Information Act is aptly named.

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Is Michael Mukasey Really Spider-Man?

What is the difference between the Daily Bugle and the New York Times? In the Daily Bugle, the fictional newspaper in the Spider-Man franchise, the superhero is smeared as a danger to the public weal with headlines like “Spider-Man: Threat or Menace?”

The headline in Monday’s New York Times, “Post-9/11 Cases Fuel Criticism for Nominee,” was more subtle than that. But the contents that followed were not. As former federal prosecutor Andrew McCarthy demonstrates today in an exceptionally well-informed analysis, the Times was performing nothing less than a hatchet job on Michael B. Mukasey, President Bush’s choice for the position of Attorney General.

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What is the difference between the Daily Bugle and the New York Times? In the Daily Bugle, the fictional newspaper in the Spider-Man franchise, the superhero is smeared as a danger to the public weal with headlines like “Spider-Man: Threat or Menace?”

The headline in Monday’s New York Times, “Post-9/11 Cases Fuel Criticism for Nominee,” was more subtle than that. But the contents that followed were not. As former federal prosecutor Andrew McCarthy demonstrates today in an exceptionally well-informed analysis, the Times was performing nothing less than a hatchet job on Michael B. Mukasey, President Bush’s choice for the position of Attorney General.

Next to the MoveOn.org advertising flap, which has revealed how the paper’s managerial incompetence can mix with its biases, the Mukasey story exposes the partisanship of the paper’s supposedly non-partisan news section in a way that few stories ever quite so nakedly do. It will be interesting to see if Clark Hoyt, the Times’s Public Editor, takes up this scandal, as he has here with the MoveOn.org ad, in a forthcoming column.

Whether we hear from Hoyt or not, the lengthening of the line of soiled laundry on display at our country’s premier newspaper is spectacularly ill-timedat least from the point of view of the self-preening journalism lobby itself. On Thursday, the Senate Judiciary Committee is set to take up a “shield law” that would carve out special privileges for journalists, exempting them from having to testify in legal proceedings about their confidential sources.

Although the Times’s Mukasey story does not bear in any direct way on the issues addressed in the bill, it demonstrates, as clearly as DanRathergate did, something else. Rank partisanship has infected American journalism to the point that a shield lawa bad idea under any circumstances, as I have argued herewould at this juncture be a formula for the kind of disaster that only a Spider-Man could save us from.

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