TigerHawk

Like the New York Times, Bob Dole wants to license reporters. Or, more fairly, he wants to license particular reporters in order to grant them immunity from prosecution should they participate in a crime. The vehicle he endorses, Richard Lugar's Orwellian "Free Flow of Information Act,"(pdf) [UPDATE: Link fixed.] is nothing more than a conspiracy between the political establishment and the corporate press to define a class of citizens that have more rights than ordinary Americans. As has already happened in many states, federal politicians propose giving the mainstream media a particular privilege not available to ordinary citizens in the guise of enhancing the "free flow" of information.

Stay with me here through a bit of background.

The New York Times desperately wants its reporter, Judith Miller, out of jail. Judith Miller is in jail because she is refusing to testify in Patrick Fitzgerald's investigation of the Valerie Plame matter. As others have pointed out much more ably than I ever could, Miller is not in jail because she has refused to divulge a source to special prosecutor Patrick Fitzgereald. Miller received a subpoena that specified the source in question, so we know that both Fitzgerald and the judge in the case know who Miller talked to. As Tom Maguire has reminded us on more than one occasion, "Ms. Miller is *not* Bob Woodward protecting "Deep Throat", but this part of the Times PR campaign is working." As Maguire points out, just about the entire world knows that Miller's source is "Scooter" Libby, Dick Cheney's Chief of Staff. Libby has released Miller from her obligation of confidentiality and, presumably, testified himself about their conversation, but Miller has decided that Libby's release was effectively coerced and therefore that it is ineffective. The only question is whether Miller will testify about her recollection of the content of her conversation with Libby, and she refuses to do so, she says, because she gave her word that the conversation was to be confidential.

Of course, a promise of confidentiality is ordinarily not adequate to shield the content of a conversation from a prosecutor bearing a lawfully issued subpoena. Miller claims that right because she is a "reporter." But what was she reporting? She was reporting -- or would have had she actually written anything -- the substance of a conversation with Scooter Libby. Why did Libby talk to Miller? In all likelihood, to discredit Plame's husband Joe Wilson, who famously lied about his trip to Africa in order to discredit the Bush administration (about whether Saddam had tried to acquire uranium from Niger, for those of you who have been unconscious for the last two years).

Libby was not promoting the "free flow of information" or blowing the whistle on government corruption or evil in high places. Libby was defending the White House against a political attack by spinning Judith Miller and who knows who else in the White House press corps. That spinning of Miller may or may not have involved the disclosure of confidential information, and it may or may not have violated any law, but it is very hard to see how it would have been the sort of communication that is so important to democratic government that either participant should be excused from testifying before a grand jury about it. Libby's conversation with Miller was, in all probability, nothing more than one-on-one propaganda in a political campaign. They were using each other for the benefit of their respective employers -- Libby so that his ultimate boss would retain his job, and Miller so that the New York Times would secure an edge over its competitors. There was nothing noble in this conversation, and it is very hard to see why either participant should be excused from testifying about it.

Against the background of Miller's imprisonment for refusing to testify, editors, reporters and tut-tutting politicians have been falling all over themselves calling for a federal "press shield" law. The editors and reporters want to be free to conspire with government employees or corporate insiders or anybody else who wants to use the mainstream media for some personal advantage, all without fear that they might have to testify about their whispered phone calls. The politicians see an opportunity to get favorable press coverage from the mainstream press. To that end, Senator Richard Lugar and Rep. Mike Spence, both Indiana Republicans, introduced the "Free Flow of Information Act,"(pdf) and Bob Dole endorsed it this morning in, of all places, the New York Times.

The FFIA provides that

A Federal entity may not compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under Federal law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to the covered person--

(1) that the party seeking to compel production of such testimony or document has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than a covered person;

(2) that--

(A) in a criminal investigation or prosecution, based on information obtained from a person other than a covered person--

(i) there are reasonable grounds to believe that a crime has occurred; and

(ii) the testimony or document sought is essential to the investigation, prosecution, or defense; or

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter; and

(3) in any matter in which the testimony or document sought could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of the identity of such a source, that--

(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security;

(B) compelled disclosure of the identity of such a source would prevent such harm; and

(C) the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information. (bold emphasis added)

Note that it is not at all clear that if this law were enacted it would help Judith Miller. By all accounts, she is not protecting the name of her source, or even the source's version of the conversation between the two of them. She is protecting only her version of the conversation between the two of them.

Beyond the specifics of the Miller/Plame case, there are at least two huge problems with this proposed statute. First, it grants this privilege only to "covered persons," the definition of which I will address imminently. Second, it creates an absolute shield against prosecutorial inquiries that seek to disclose the identify of a source unless "disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security." In the absence of a threat to national security, no federal court would be able to compel any "covered person" to disclose any source under any circumstances. Since national security and individual security are manifestly different, the law presumably would shield a reporter who knew that a source was about to commit a murder or rob a bank. Does anybody think that such an expansive privilege is necessary to the functioning of our republic?

More troubling, though, is the definition of "covered persons," which describes a status rather than an activity:

The term `covered person' means--

(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--

(i) publishes a newspaper, book, magazine, or other periodical in print or electronic form;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity to the extent that such parent, subsidiary, or affiliate is engaged in news gathering or the dissemination of news and information ; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

In order to gain the benefit of the protection, an individual must be either an employee of or have a contract with "an entity" that publishes in certain pre-defined formats ("newspapers, books, magazines"), "operates" a radio or television station or network, or "operates" a wire service.

There is no protection under the statute for individuals writing and publishing without any pre-established relationship (employment or contract) with "an entity" that engages in the specified activities.

So, for example, if you are a free-lance journalist working on spec, the FFIA would not protect you. If you are a professor writing a book for which you do not yet have a publisher, it is hard to see how you would be protected by the FFIA. If you are a blogger who writes for no financial gain but simply because you take your role as a citizen seriously, you are out of luck.

The FFIA is not, therefore, concerned with protecting the practice of journalism or, for that matter, the "free flow of information." It is concerned with protecting a class of people hired by media corporations as defined by the government. The FFIA grants a license to practice journalism, but it is only available to people who work for "entities" that do specific things. As it happens, these same entities are in a position to enhance the political fortunes of any politician that supports the granting of this license.

It would, of course, be fairly easy to revise the bill to protect the practice of journalism rather than the status of journalist. My proposed revisions appear below:

The term `covered person' means--

(A) an [individual or] entity that [is or has engaged in a covered activity during the course of which such individual or entity came into possesion of the information relevant to the proceeding for which testimony or the production of evidence is sought]disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--

(i) publishes a newspaper, book, magazine, or other periodical in print or electronic form;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity to the extent that such parent, subsidiary, or affiliate is engaged in [a covered activity] news gathering or the dissemination of news and information; or

(C) an employee, contractor, or other person who [engages in a covered activity]gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

The term 'covered activity' means the gathering, development, and publication (whether by print, electronic, broadcast or other means) of news or opinion intended for an unaffiliated audience.

I submit that my approach (which I am sure can be improved by better draftsman) would substantially increase the "free flow of information" without getting the government in the business of deciding who is, and is not, a journalist.

Notwithstanding the tone of this post, I strongly believe that the First Amendment affords some significant protection against prosecutors or plaintiff's lawyers using their subpoena power to coerce or intimidate people who write or speak. The First Amendment, though, does not define a class of person entitled to special privileges, and neither should the Congress by statute. Instead, we need to protect any citizen, whether or not that person is a licensed journalist, who publishes news and opinion for public consumption from intimidation by legal process aimed at the gathering or publication of news.