The AP spying scandal: Why Obama wants a federal shield law

The White House is pushing Congress to pass a law to protect journalists and their confidential sources reporter Jana Winter
(Image credit: Doug Pensinger/Getty Images)

Just days after The Associated Press revealed that the Department of Justice had secretly seized its reporters' phone records, the White House on Wednesday asked Democratic lawmakers to revive a proposed federal shield law that could protect journalists from such actions in the future.

Shield laws, in general, protect journalists from harsh penalties should they refuse to reveal their confidential sources. And many say it's no secret why the Obama administration is pushing such a law now. "Obama's strongest political maneuver at the moment would be to shore up his civil libertarian credentials," writes Jonathan Chait at New York.

A quick history lesson: In 1972, the Supreme Court recognized that journalists should have some legal protection to keep their sources confidential. In that case, Branzburg v. Hayes, journalist Paul Branzburg refused to reveal the names of drug users he had interviewed for a story on hashish. In a 5-4 decision, the court sided with him, saying journalists should have some, though not total, protection to ensure the freedom of the press.

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However, the federal government has never passed a shield law codifying the court's ruling. The Senate Judiciary Committee easily approved a proposed law, called the Free Flow of Information Act, in 2009. Yet that law withered in the full Senate amid a debate over the definition of "journalist," prompted in part when WikiLeaks began publishing secret government cables.

Under that proposed law — which the White House is now asking Congress to reconsider — journalists would receive varying degrees of protection. In general, the law would protect reporters unless the government can provide a "reasonable" justification for its request that outweighs a journalist's right to keep her sources confidential. The government would also have to show that it had pursued every other avenue to uncover that information.

However, the White House also carved out significant exceptions in the bill, making it unclear whether the legislation would have protected the AP in this instance. According to Sam Stein and Zach Carter at The Huffington Post:

The Obama administration worked to water down the bill by seeking a far broader national security exemption. It would have given members of the administration the prerogative to declare certain types of leaks a matter of national security, and require federal judges to defer to prosecutors' claims that the information involved was indeed an important national security issue. [Huffington Post]

In lieu of a federal shield law, states have passed their own protections for journalists. According to the Reporters Committee for Freedom of the Press, 40 states plus Washington, D.C., have some sort of shield law. Another nine states have no shield laws, but afford some journalistic protections as a result of court cases. Wyoming is the only state with no shield laws or court-ruled protections.

The laws are constantly changing to keep up with the times. Most recently, legislatures have struggled to redefine what makes someone a journalist. Is it an employee of a legitimate news agency, or can it be anyone with a Twitter account? And what defines a "legitimate" news agency anyway? That's precisely the debate that emerged over the WikiLeaks cable dumps, since it was unclear whether shield laws would have extended to that organization and its members.

A New Jersey judge offered some clarity on that question in April, ruling that a blogger there could be considered a journalist under the state's shield law. However, that ruling applied only to New Jersey.

In the most high-profile shield law case in recent years, a Fox News reporter was ordered to testify about her sourcing for a story on accused Aurora, Colo., shooter James Holmes. The reporter refused, and the judge is now threatening her with jail time.

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