No administration official should ever hold the threat of jail time over the heads of reporters who are doing their job responsibly. Even President Obama was forced to admit this last week as he endorsed legislation that would, he asserted, protect the freedom of the press. "Our focus must be on those who break the law," said the president. "And that's why I've called on Congress to pass a media shield law to guard against government overreach."
The overreach in question was the Justice Department's decision to spy on Fox News correspondent James Rosen. Department officials went after this journalist, citing the Espionage Act as justification. This is the law progressive hero Woodrow Wilson signed in 1917 so that he could round up and imprison individuals whose only crime was to speak out against his policies. Perennial Socialist Party presidential candidate Eugene V. Debs, for instance, was sentenced to 10 years in prison for rejecting America's involvement in Word War I. The law was used to open mail, censor the media and movies, and raid political opponents.
Over the years, the Espionage Act's most obnoxious provisions have been removed, but the Justice Department today has interpreted what remains in a way that would surely have made Wilson proud. Newly unsealed court documents reveal two federal judges rejected the department's media-surveillance request. That wasn't enough to stop this administration. Justice Department officials kept looking until they found a magistrate who was willing to rubber-stamp the warrant. Now the same administration is asking for a media shield law, raising the obvious question about whether the proposal is truly a "shield" or a Trojan Horse that will make it easier for government agents to suppress inconvenient speech.
The Senate's No. 2 Democrat unintentionally illustrated the potential for abuse in a recent interview. Sen. Richard J. Durbin of Illinois voiced doubt about whether small news outlets would be worthy of legal protection. He said it would apply to "someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection? We need to ask 21st-century questions about a provision that was written over 200 years ago."
This is not actually a difficult historical question. Self-publishing played a key role in America's independence movement, as pamphlets provided a cheap and convenient means of distributing information to a wide audience. Pamphleteers were the bloggers of their time, often writing anonymously out of fear of reprisal from the British government. The need to protect individuals from such reprisals inspired the First Amendment, as is clear from the wording of James Madison's first draft, which stated: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments."
A shield law "for the media" gives the government the chance to decide who does, and who does not, qualify for this privilege. In that respect, a media shield law represents a diminution of liberty. Free speech is something that belongs to everyone.
The Washington Times
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