Reaffirming Need for a Federal Reporter's Shield Law

One of the bright spots in yesterday's DOJ report on how it will be nicer to the media was the Obama Administration's reaffirmation of the need for a federal reporter's shield law.  Why is this important? 

A federal reporter's shield law will provide protection for reporters when they are investigated by federal agencies and called upon to testify or produce their materials in the federal courts. 

In order to have a truly free press that is able to keep its eye on the government and report on public affairs, reporters should not be made a tool of the government (via subpoenas or otherwise) and their sources, processes and unpublished work should remain confidential except in the rarest of circumstances.

Forty states plus the District of Columbia have a codified shield law (i.e., a written statute) and another nine states have case law recognizing at least some protection for reporters.  Most federal circuit courts also recognize at least some protections for journalists, rooted in a proper understanding of the First Amendment, but some federal courts do not recognize such protections. 

What does this mean?

Here is an illustration ... picture a reporter who is subpoenaed to reveal a confidential source before a state courthouse in one case and is simultaneously subpoenaed to reveal the same information in a federal courthouse in another case.  Even if those courthouses are across the street from one another, the reporter could lawfully resist the disclosure of subpoenaed information in the state courthouse; but be required to testify under the threat of being held in contempt of court in the federal courthouse.

Does that make sense when the reporter's shield is rooted in First Amendment principles?  No, it does not.  

It is time for every journalist to have at least some protection in every courthouse throughout the country.

Kudos to the Obama Administration for reaffirming the need for Congress to pass a federal reporter's shield law.  Previous iterations of such a bill passed the House overwhelmingly (398 to 21) as well as the Senate Judiciary Committee.  Now it is time for Congress to kick into gear a stalled effort on a federal shield law to protect reporters nationwide.

Further reading: a good analysis of the degree to which the DOJ Report is moving generally in the right direction was put together by Brian Fung of the National Journal and can be found here.