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A Perfect Example of the Need for a Federal Shield Law

-first posted at RTDNA.org on January 5, 2010

If you follow RTDNA or read this web site on a regular basis, then you’re probably familiar with this organization’s years-long push to pass a federal shield law to protect journalists working with confidential sources on important stories.  A law that nearly every state has in place, the measure would provide safeguards that would prevent federal officials from coming after reporters and their managers to get the identities of confidential sources.  The classic use of the confidential source speaks for itself.  I can truly trace my first interest in a career in journalism to reading the exploits of Woodward and Bernstein as they broke perhaps the biggest story ever with the help of “Deep Throat.”

But investigations at the federal level don’t always go so swimmingly.  Ask Jim Taricani.  In 2004, this Rhode Island TV reporter spent six months confined to his home after a federal judge found him in contempt of court for not revealing who leaked him a surveillance tape he was using as part of an investigation into political corruption.

In December, the Senate Judiciary Committee passed a version of a federal shield law, sending it on to the full Senate for consideration.  The House of Representatives has already passed its own version of the bill.  With full Senate consideration looming, this is the closest we have come to a federal shield law.  But the fight in the upper chamber will be tough.

As we were watching the drama over the bill play out in Washington, a perfect example of the need for the legislation cropped up in the days following the Christmas Day bombing attempt on that Northwest Airlines jet headed to Detroit.  Travel journalist Christopher Elliott, operator of the elliott.org travel tip web site and co-host/reporter/producer of numerous other travel-related reporting ventures, published a transcript of the new TSA security measures issued in the wake of the incident.  You can see the transcript here:


Elliott received the text of the directive from an anonymous source.  And when an FBI agent showed up at his door with a subpoena demanding the name of the person who sent Elliott the material, this because a classic federal shield law case.  His subpoena is here (along with an account of his interaction with the agent):


The result of the service of the subpoena is that Elliott had to immediately—in that week between Christmas and New Year’s—gather an army of personal and industry attorneys and experts to help figure out what to do.  At no time did he back down from his decision to publish the directive.  But he and his colleagues expended time and money to fight the subpoena.  By New Year’s Eve, the government pulled the plug on its investigation—at least as far as Elliott was concerned.  His attorney received a message from the Department of Homeland Security letting him know Elliott’s subpoena was being withdrawn.

That’s a victory in any journalist’s book, but some of you might be saying, “See, we don’t need a shield law.  The government backed down.  Elliott didn’t face contempt charges or house arrest.”  But that’s where you would be wrong.  In a column from Tuesday, Elliott wonders aloud whether he might now be on the terrorist screening database.  A successful flight this week shows that he apparently is not (he would have been barred from the flight had he been added to the list).   But his question about just how people end up on this list—which is, ironically, secret—makes one think about the long-term consequences of unprotected reporting work when it comes to government agencies.

The great Supreme Court Justice William Brennan used the notion of a “chilling effect” in a case about free expression and the mail—not traditional press freedoms.  But the term can be used in relation to the effect threatened government penalties can have on journalists and their likelihood to pursue stories that might generate those penalties.  In a world without a federal shield law, that chilling effect is surely at play here.  Will Elliott publish leaked government material again?  From reading his blog and seeing his approach this time, I think he probably will.  But will the thought of the terrorist database cross his mind when he does?  I’m almost certain of it.  And think of the chilling effect the threat of an air travel blacklisting must have on a man who makes his entire living traveling by plane and writing about it.  It’s about as great a professional threat as anyone can face.  And face it each time going forward now he must.  Because he published material leaked to him by a confidential source without the protection of a federal shield law.

No one would deny the issue of air security is an important one.  The government spends billions of our dollars every year to run its TSA and other programs.  And people’s lives—millions of them—are literally at stake based on how good a job that government and its entities do.  Even if I weren’t a professional journalist myself I would want as much freedom as possible for reporters to peer into every corner of the system—often with the help of confidential sources—to see that it’s working as well as it possibly can.  And I want them to be able to do that without fear of losing their freedom or livelihood in the process.

This year, 2010, could be the one where we see the president sign a federal shield law.  We’ve never been this close before.  Join me in doing what you can to let everyday people know this law is about their right to know.  Opponents are going to paint this as a special privilege for reporters that weakens national security.  It is exactly the opposite.  It is a universal right for all people—from reporters and editors to the people who consume their work—that will strengthen every part of government onto which we can shine our lights.  That is why we fight this federal shield law fight.

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