So much for another one of those Obama promises. You know, the ones that start out one way and suddenly become something else, mostly less.
During his whirlwind campaign for the presidency last year, the relatively novice politician was afforded press treatment not seen since John F. Kennedy’s campaign in 1960. The hard questions about his lack of experience, his grandiose schemes and what they would cost and his place on the ideological scale just weren’t often asked and when they were, the glittering generalities in which the answers were couched went unchallenged.
Among the pledges the soon-to-be president made was support for reinforcement of the First Amendment’s protection of press freedom through the adoption of a national law that would shield reporters from government pressures to identify their sources. This promise came during a Justice department special counsel’s investigation into the public identification of Valerie Plame as a onetime CIA operative that resulted in the jailing of one reporter and a threat to others for refusing to name sources.
It would take too much time to explain the Plame case, one that defies rational explanation for no other reason than the jailed reporter never wrote a story and long before her incarceration the chief investigator had determined no law had been violated in revealing Mrs. Plame’s former work. It was a political witch hunt whose real and long-lasting import was to severely weaken the media’s constitutional safeguards.
But President Obama was going to come to the rescue, galloping in to save the day for his friends in the media. Along the way, however, the horse he rode in on turned up lame and he decided that in the possible interest of self-preservation in his new job perhaps it wouldn’t be so wise to give the press too much freedom (see his “press” conferences for examples). So in the midst of the ongoing debate in Congress over the shield law, the White House reportedly has sent lawmakers a proposal that does more to protect governmental rights than reportorial ones.
Under the new proposal, reporters would have to reveal their sources if the information disclosed was determined by a judge to have been a threat or actually harmful to national security. In such cases, the judge would weigh the importance of revealing the information to the public against the damage it might cause national security. That’s not too bad an idea. But here’s the rub: The government would only have to show the judge in a closed session that the information was “reasonably likely” to be harmful to the nation’s interests, a much lower standard than earlier proposed.
Furthermore, the proposal would make it much more difficult for a reporter to protect sources in a civil case where there are no national security concerns or criminal aspects. The judge would only have to decide that subpoenaing the reporter’s notes or sources is essential to the resolution of the matter. There has been a sharp increase in such civil subpoenas sought by former government officials apparently angered by unflattering stories about them leaked by bosses or colleagues.
There have been famous instances when reporters have withheld information in response to government appeals that the disclosure could harm national security and threaten lives. One such case involved the Bay of Pigs invasion when a well-known correspondent withheld advance information about the disastrous Cuban operation to his everlasting sorrow. But few reporters presented with convincing evidence of potential damage to the national interests would not have done the same. In fact, most journalists who have worked in this town for more than a few minutes have faced similar decisions.
Over the last four or five decades, Supreme Court rulings have made it more difficult to sue the press for libel, actually making it almost impossible for a public figure to do so. But the government mainly through prosecutors has increased its pressure to compromise the collection and dissemination of public information by attacking the sanctity of reporter’s sources.
Now it seems the president also has decided the people’s right to know might not be all that beneficial to him or them.
Dan K. Thomasson is former editor of the Scripps Howard News Service.