Why a Media Shield Is Impossible

There's a new urgency in Washington, a sense that the time has come to establish a national media shield that would protect news organizations and reporters from federal subpoenas and secret spying.

It won't happen, certainly not in any meaningful way.

News that the Justice Department has used secret subpoenas to spy on the AP and its reporters is hardly remarkable. In 1970 then-Attorney General John Mitchell told the American Bar Association that the government had developed five guidelines that would have to be followed before a reporter could be subpoenaed. Rest assured journalists were being protected!

But according to The Quill, the magazine of the Society of Professional Journalists, "while the Mitchell guidelines would seem to be reasonable, the Attorney General did establish an escape clause. Although not reported in the Justice Department press release concerning his ABA speech, Mitchell did state: 'these are general rules designed to cover the great majority of cases. It must always be remembered that emergencies or other unusual situations may develop where a subpoena request to the Attorney General may be submitted which does not exactly conform to these guidelines." (See: Newsman's Privilege: An Issue of Press Freedom, July 1971.)

How do I know? I wrote the article.

While a number of states have media shield laws that has never been true at the federal level. This is not for want of trying: The first media shield law was introduced in 1929 by Sen. Arthur Capper (R-KY) and obviously went nowhere.

In the early 1970s there were renewed demands for media protection but the head of the relevant House subcommittee at the time, Rep. Robert W. Kastenmeier (D-WI) explained that "hearings would be more likely if there was more interest in the bill. I'm not going to schedule hearings to promote interest."

National Security

There's no question that the government has national security needs which should not be the fodder for the public press. The problem is that it is also government which determines what is and what is not "national security." The definition of "national security" is plainly subject to abuse, one need look no further than the infamous "Pentagon Papers" case to see how claims of national security can be misused. The leaked papers showed that a number of administrations had lied and that those lies had gotten us into the Vietnam War and then to the expansion of the Vietnam War to the point that more than 500,000 U.S. military personnel were on the ground at one time in that small country. Of those who served more than 50,000 were killed.

While the issue of how to treat national security matters remains a puzzle there is also the mystery of who, exactly, is a journalist. There is no license required to be a reporter, photographer or editor. Traditionally, we used to think of journalists as people who worked for newspapers, magazines, and newsletters as well as those who did newscasts on radio and television. But today legitimate journalists are often bloggers, so how do we define some bloggers as "journalists" while not giving others the same designation -- and protections?

We already understand that there is a right to confidentiality which is good for society. We allow for the legal confidentiality of communications between lawyers and their clients, clerics and members of their communities, and doctors and patients.

At the same time the erosion of privacy has been monumental. For instance, there may be confidentiality between doctors and patients but huge volumes of medical information are floating around. Just think of the automated prescription refill services that pharmacies conveniently use, even if not requested, or the helpful information from drug companies to keep using your medicine.

No less important it is not at all clear that journalists or anyone else can have any confidence that what they do or say, or with whom they meet, is in any way confidential. Every Internet click can be traced, facial recognition software says who we are and where we've been, the phone system is obviously monitored, real estate ownership records are available online, political contributions are easy to search, video cameras are everywhere and recording systems that can track the license plates of passing cars are becoming more common. The level of privacy which might have existed even a few years ago is now gone.

It can't be that hard to get private information otherwise identity theft would be rare. And if criminals can get your data, imagine how much easier it is for entities with "official" access to various systems, records and data.

The issue is not merely that journalists are entitled to confidentiality and privacy, the greater point is that no one can be sure they are not being recorded, intercepted or photographed. And while there may be benefits to such surveillance -- the Boston bombings are a recent example -- the essential nature of a free society has been compromised.

It could happen that some type of a "media shield" law will now be passed on Capitol Hill. But it will be an illusion, offering no real protection for reporters, riddled with exceptions and impossible to separate from the wider reality of lost privacy and more government intrusion which impact us all.