The focus on information leaks in the federal government has taken an ominous turn.
While it is appropriate to target prevention of leaks of classified national security information, a proverbial witch hunt aimed at government employees and journalists is not.
Of particular concern to a free press – which is a watchdog on government – is U.S. Attorney General Jeff Sessions’ indicating the Department of Justice may review and revise guidelines regarding the issuance of subpoenas to the media.
Revisions to these guidelines, which were updated in 2013 to increase the steps that must be taken before a reporter is subpoenaed by the department, would do more damage than good.
"Attorney General Sessions' remarks minimize the care with which journalists treat their sources and their information," said American Society of News Editors President Mizell Stewart III, vice president of news operations for Gannett and the USA TODAY Network. "The publication of information received from a confidential source, especially classified information or information relating to national security in any way, occurs only after significant vetting by several people at all levels of the newsroom. It is also well-documented that media outlets actively seek the input of the government before publishing any sensitive information."
Rather than looking at expanding subpoenas of reporters, the federal government via Congress should pass a shield law that both protects journalists and sets parameters for when information can be compelled.
While press and public are one and the same in the right of access to their government, judges and lawmakers historically have recognized the need for certain reporting privileges if journalists are to fulfill their mission. One is limited immunity from being summoned to court to testify about sources and provide information available by other means.
In South Carolina, legislators deserve credit for putting into law that protection for journalists via a shield law. It grants news organizations limited protection against orders to testify and turn over information in cases about which they have reported.
Most citizens — indeed some in the legal community — know little about the shield law. Others question the need for it. Some say it is not right that a reporter enjoy a shield.
Here’s why reporters need such “privilege” and why you should care:
- As researchers and investigators in their own right, reporters gather information pertaining to many incidents that end up in the court system. To routinely compel reporters to come forward with that information excuses the legal community from doing its homework and endangers the media’s ability to gather information.
- If you speak to a reporter and he or she promises that something you say will not be published, the promise is to be upheld. If it’s not, among the least of your actions is a vow never to speak with the reporter again.
- If the reporter is compelled to testify in court about something to which your interview relates, you might expect only what is printed as public record to be the subject of questioning. Yet if a reporter is on the stand, the questions and cross-examination are likely to go far beyond.
- If the reporter states he or she will not answer questions beyond what is included in a published story, that could subject the reporter to a contempt-of-court charge and jail.
In endorsing the S.C. shield law, the late Sen. Marshall B. Williams of Orangeburg and other lawmakers understood the practical nature of the problem: Compelling reporters to testify in most instances compromises the nature of what journalists do. Sources simply won’t be sources anymore.
At the same time, lawmakers understood, as do journalists, there are some instances in which providing information is crucial, with the state shield law setting parameters.
A reporter cannot be compelled to testify unless the privilege granted under the law is knowingly waived or the person seeking the information or testimony “establishes by clear and convincing evidence” that such is:
- Relevant to the controversy.
- Cannot be reasonably obtained by alternative means.
- Is essential to the “proper preparation or presentation of the case.”
On the federal level, lawmakers should prioritize a shield law. Regardless of any controversy about publication of leaked information and use of anonymous sources, protecting journalists from becoming tools of the government and legal system is an important aspect of ensuring open government.