A 'shield law'? Think thrice?
Now comes Barack Obama, his Justice Department on the hook for a secret fishing expedition through the business and personal phone records of Associated Press employees (and who knows who else), suddenly full of manufactured outrage and promising the spied upon a big, juicy worm.
But the AP (and in the interest of full disclosure, I am a former AP reporter), and any media doing the rah-rah-sis-boom-bah for a “shield law,” should be careful for what they cheer. For a federal shield law would have the perverse effect of undermining the very press freedoms that proponents claim it would preserve.
This debate is a classic example, non-economic, of the “seen” and “unseen” lesson of 19th-century French political economist Frederic Bastiat:
“(A) habit, an institution, a law produces not only one effect but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.”
Unfortunately, our national decline in critical thinking skills prevents many people from contemplating the unforeseen on this and so many contemporary issues.
What most see with a federal shield law are “protections” for reporters — specifically, “reporters privilege,” the concept wherein reporters cannot be forced to divulge the confidential sources of their information in court, except in rare and extreme cases.
By extension, a shield law would, presumably, prevent the kind of clandestine fishing trip that the administration embarked on a year ago as it attempted to ferret out the source for an AP report detailing an equally clandestine anti-terrorist operation in Yemen. (The evidence now suggests the administration had no valid claim of “protecting national security” but was honked off that the AP broke the story before it could trumpet the operation itself.)
In general, a shield law would require, in most instances, the government, subpoena in hand, to inform the targeted media of its intent and to allow the media to challenge the subpoena in court. (That said, we don't even know if the Obama administration had a judge-issued subpoena or used a judge-less “national security letter” in the Yemen matter.)
But it's the unseen of a federal shield law that's just as chilling.
Such a law effectively would allow the government to determine who is and who isn't a journalist, de facto “licensing.”
Additionally, a shield law would allow Congress to grant a privilege that long has been a constitutional right, as enshrined in the First Amendment.
Then there's the slippery slope of “national security,” defined by the government, adjudicated by the courts and ripe for abuse by the former and inconsistent application by the latter.
A federal shield law for reporters would grant Congress a say in that which the First Amendment has said it has none for the past 222 years.
“Fixing” one government overreach with an even worse government overreach is only a greater tyranny.
Colin McNickle is Trib Total Media's director of editorial pages (412-320-7836 or firstname.lastname@example.org).
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