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LLEWELLYN KING: To shield or not to shield?

by lking@kingpublishing.com on June 01, 2013 11:00 AM

The trouble with erecting fences is small boys will find holes in them. So it is with legislating. The common defense of tax avoidance by wealthy people and corporations is: “We did nothing illegal.”

The latest corporation to trot out this trope was Apple. Its CEO Tim Cook wowed the Senate — and senators at a May 21 hearing vied in their praise for Apple.

The trouble with laws, unless they are crafted with great skill, is those they are meant to keep in or out will find the hole in the fence.

That is why, although I begin like any old war horse by kicking at my stall when the government goes after reporters, I would urge those now supporting a federal shield law, known as the Free Flow of Information Act of 2013, to think carefully. I don’t think it will work and I think it will create large loopholes around the sensitive issue of national security. That is what sets a federal law apart from those on the books in the states.

Once there is a law, common decency, societal values and tradition are abandoned. Clever prosecutors see laws not as barriers but opportunities. One fears that the law rather than supporting the broad protections of the First Amendment could, in fact, detract from them.

The basic tenet of the proposed law is to require judicial review before the mastiffs of government begin their sniffing. Their goal is always to root out the source of the reporter’s information and to punish, and possibly destroy, that person.

Back in the days of the Atomic Energy Commission, I had the spooks after me. The great fear I felt as a reporter was nothing compared to the fear I felt for my highly placed bureaucratic source.

Angry investigators insisted it was a national security issue, involving classified nuclear secrets. It was not. It was secret tests that cast severe doubt on the safety of nuclear reactors getting the cooling water in emergencies.

Exposing the secret government tests led to a redesign of reactors and nine months of public hearings. But the words “nuclear” and “national security” fit so nicely together. Can you imagine a judge conducting judicial review not granting the government the powers it sought?

Mathew Cooper of The National Journal, who was prosecuted when he was a reporter for Time magazine because he refused to reveal his source, has written wisely on the subject of the proposed shield law. He believes that custom is a greater protector of journalism, and its right to gather the news, than the proposed shield law. He supports the proposed law, but says he does not think it will do much good.

Depending on how the law is written, I believe it could do harm when malicious prosecutors start trying to define, in the age of blogging, who is a journalist or whether national security is an issue.

I have been involved over the years in freedom of the press issues and have been detained by the security police in two countries where the press was thought to be free, Southern Rhodesia and South Africa. And in England, I saw a friend of mine imprisoned for three months because he refused divulge the source of a trivial piece of information.

Cooper is right when he says tradition is important. So is the collective outrage of one’s peers. The Associated Press case, where the Justice Department has accessed e-mails and phone calls from reporters, has provoked a firestorm that has the DOJ reeling. Bravo!

Sadly, though, the Fourth Estate can be quite selective in its defense of its own. Is it as angry about the State Department investigation of Fox reporter James Rosen? I’m not so sure. Would it defend as vigorously the government pushing around reporters from a blog or newsletter? In the latter case, I can report, the voices of support were few though precious when a cabinet secretary decided I should be punished for doubting the veracity of his agency.

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June 01, 2013 10:50 AM
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