Almost completely ignored in the current policy debates over health care, climate change and the stimulus package is the legislation currently being taken up by the Senate to protect journalists against being forced to reveal confidential sources.
The Free Flow of Information Act would make federal law standards that already exist in the state court proceedings of 49 states and Washington, D.C. The bill would require that judges apply a balancing test weighing the public interest in a free press and investigatory journalism against the compelling interest in disclosing the source.
In order for the test to apply, however, the government, or the private party seeking disclosure in a civil case, would have to first demonstrate that it was “essential” to the case and that all other alternatives had been exhausted. In civil proceedings, the party seeking disclosure bears this burden, while in criminal proceedings the journalist must defend against it.
Importantly, this test would apply to leaks of classified information unless it involved a potential terrorist attack or “significant and articulable harm to national security.” The government must make a strong case in proving this point; absent specific details a case would not be exempted.
After a recent compromise between Senate sponsors and the White House, the bill appears set to pass. The route that it took to get there, however, reveals yet another potential concern for President Obama’s distrust of freedom. Most journalism advocates are accepting the bill as a step in the right direction, but not the level of protection that they desired.
“As one of the largest journalism organizations in the country, and with the most potentially affected by federal shield law protection, we are not where we had hoped to be with this legislation,” said Society of Professional Journalists President Kevin Smith in a press release. “However… SPJ is supporting this latest compromise and hopes for its quick passage.”
They were forced into this compromise because of Obama’s initial retraction of support and insistence that many more cases be exempt from the balancing test. The bill submitted by the White House was described as “worthless” by the SPJ, yet Senate Democrats unwaveringly held ground and managed to preserve much of its teeth in their compromise.
Obama’s legal attack on the press is interesting in light of his recent run-ins with Fox News. Assessments of the news organization’s credibility aside, Obama’s belittling of the Fox can accurately be described as retribution aimed at threatening further criticism.
Both his opposition to protecting essential journalistic freedoms and attempts at “chilling” the speech of his critics show a mystifying distrust in the long held merits of free speech, and they place him frighteningly at odds with the theoretical basis of Constitutional case law.
Avoidance of these “chilling effects” has been a justification for many restrictions on journalists to be declared unconstitutional, even in defending less tolerable forms of journalism such as libel. United States political philosophy places more trust on free individuals than on government. This often translates into sacrificing pragmatic advantages such as knowledge of confidential sources because the government involvement required would present the potential for a much more dangerous effect on the free press.
That Obama thinks himself to be outside this system of ideals shows that he just doesn’t get it.