Controversies over journalist phone records reignite calls for federal media shield law
By Brad Bumsted and Jeremy Boren
Published: Saturday, June 1, 2013, 11:00 p.m.
Some free-press advocates don't want to waste backlash from the government's secret surveillance of journalist phone records on another failure to pass a federal media shield law.
“We need to strike while the iron is hot,” said Ken Paulson, president and CEO of the First Amendment Center based in Washington and Nashville. “The key is to get it done quickly while there is still outrage from the (Associated Press) controversy.”
Readers and private citizens, such as Maureen Ciarolla of Monroeville, see it in more personal terms: If not for a free press, the government would be able to hide embarrassing failures that could affect the public.
Major news outlets and media rights groups joined President Obama in urging Congress to pass the Free Flow of Information Act when reports surfaced in May that a Justice Department inquiry into leaks of classified anti-terrorism efforts included seizing records of outgoing phone calls from 20 work and personal lines assigned to Associated Press reporters in Washington, New York and Hartford. Not all of the reporters who use the lines write about government matters.
Those reports were followed by revelations that the Justice Department secretly examined phone, email and other records for Fox News reporter James Rosen, including his parents' home phone. In its court filings for Rosen's records, Justice lawyers accused Rosen of being possibly complicit in espionage activities and called him a potential flight risk — unprecedented accusations against a journalist.
Attorney General Eric Holder requested the sweeping searches from three judges before finding one who would approve such extraordinary steps.
Supporters say a shield law could be a valuable tool to protect journalism. Critics — including some journalists — contend that inviting more government involvement is a mistake that could water down the First Amendment.
“If we get to the point where there's a federal agency to protect free speech, we'll know there's none left,” said Mike Dillon, journalism professor at Duquesne University.
The AP and Rosen scandals have deepened concerns that government intrusion into news-gathering organizations could undermine the pact reporters make with confidential sources to protect their anonymity in exchange for tips about corporate misdeeds and public officials' malfeasance that otherwise would remain hidden.
“It's beyond comprehension that this happened,” said Karen Siegemund, founder of Rage Against the Media, a conservative activist group that advocates for objective reporting. “We have a free press.”
Reporters routinely rely on confidential sources as a starting point for investigative stories, but quotes and sound bites from anonymous sources less frequently make it to print or the airwaves because journalists are trained to — in the adopted phrase of President Ronald Reagan during the Soviet Union era — “trust, but verify.”
Confidentiality at risk
Polling shows that about two-thirds of Americans value the news media's government watchdog role, Paulson said.
Yet in the age of bloggers, Twitter and WikiLeaks, debate has arisen over how to define who qualifies as a journalist and whether such First Amendment interpretations should be left to the very legislators that reporters scrutinize.
“If you are in federal court on a federal issue, there is no statute, there is no legislation that protects the identity” of a reporter's confidential source, said David Strassburger of the Downtown law firm Strassburger McKenna Gutnick & Gefsky. Among Pennsylvania courts, “the shield law is absolute,” said Strassburger, who represents the Tribune-Review.
The stakes can be high for journalists and their readers, viewers and listeners.
“It's only because reporters kept digging that this story came out, because I couldn't get the information,” said Ciarolla, whose father John, 83, a Navy veteran, was among five veterans who died from a Legionnaires' disease outbreak in the VA Pittsburgh Healthcare System. “Never in my wildest dreams did I ever think that the hospital was lying to us way back then.”
Ciarolla said the government should not force journalists to reveal confidential sources, who played a role in uncovering the cause of the outbreak and an apparent cover-up attempt.
Ciarolla said her family doesn't plan to bury her father's remains, who died in 2011 and was cremated, until all the questions about the outbreak and the VA's handling of it are answered.
“Then he can rest,” Ciarolla said.
Chris Daly, a Boston University journalism professor and former AP reporter, contends a federal media shield law would be superfluous and potentially dangerous to free-speech rights.
“A proper reading of the First Amendment gives us what we need to protect ourselves and our sources,” Daly said. “Congress can give, and Congress can take away. If we invite Congress to start legislating in a way that starts out in (the media's) favor, who knows where that's going to end up? They may begin to say, ‘This is fun writing rules about the press; let's write some more.' ”
House and Senate versions of the bill would, with exceptions, prevent the government from compelling a journalist to disclose the identity of a confidential source, a legal protection most journalists have through shield laws or court precedent in 49 states, including Pennsylvania, and the District of Columbia.
Journalists stake their careers — and sometimes their freedom — on protecting sources.
Defense attorneys subpoenaed Fox News reporter Jana White to testify about who gave her details of a notebook written by James Holmes, who is accused of gunning down 12 people in an Aurora, Colo., movie theater in July. In it, Holmes foreshadowed his plans to kill. White, who cited an anonymous source in a report about the notebook, could face jail time for refusing to testify.
She has said that revealing her source would end her career because it would render worthless her promise to shield sources from public exposure.
No ‘absolute protection'
The Free Flow of Information Act is similar to a 2009 version that Obama's first-term administration opposed and sought to amend because it did not include exceptions for information the executive branch deemed a threat to national security.
“I'm troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable,” Obama said in a May 23 speech at the National Defense University. “Journalists should not be at legal risk for doing their jobs.”
A federal shield law would not provide journalists with “absolute protection,” said Paulson, the former editor of USA Today, but a judge would have been required to examine the AP phone record seizures.
Depending on amendments, the law could make investigators exhaust other means of obtaining confidential information before trying to force it from journalists with subpoenas.
Similar media shield legislation passed the House in 2007 and 2009 but fizzled in the Senate. Paulson blamed the failure on the controversy that erupted over WikiLeaks, a website that published more than 90,000 classified U.S. military documents related to the war in Afghanistan.
Some in Congress did not want the shield law used to protect websites that served as digital dumping grounds for secret government documents.
In a national Pew Research Poll conducted May 16-19, 44 percent of the 1,002 adults surveyed disapproved of the Justice Department's seizure of AP phone records. Sixty-nine percent were “very” or “somewhat” concerned that the government's efforts to protect classified information would intrude on the freedom of the press.
With a federal shield law, “you would have two sharp arrows in the quiver,” said Craig Staudenmaier, general counsel to the Pennsylvania Freedom of Information Coalition in Harrisburg.
Staudenmaier said grand jury proceedings in a perjury case of Mt. Airy Casino Resort owner Louis DeNaples and others threaten to undermine Pennsylvania's law.
DeNaples' attorney tried unsuccessfully in 2008 to subpoena notes, calendars, emails and phone records from reporters with six news outlets. The defense was trying to trace the origin of leaks in the investigation of DeNaples, who was accused of lying to gambling officials about his ties to an organized crime figure. The perjury charges were dropped.
“I'm glad it was the AP. They at least have the resources to fight it,” Staudenmaier said.
Brad Bumsted and Jeremy Boren are staff writers for Trib Total Media. Reach Bumsted at 717-787-1405 or firstname.lastname@example.org.
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