The AG is Scared of this Blog

The country’s top law enforcement and intelligence officials are concerned about legislation in the Senate that would create a statutory federal shield law for journalists. About a week ago, Attorney General Mukasey and Director of National Intelligence McConnell wrote Senate leaders a letter detailing perceived flaws in the Free Flow of Information Act of 2008. The bill would protect journalists against compelled disclosure of information they receive from confidential sources. The House voted overwhelmingly to pass the legislation, with some meaningful differences, last October.

The letter raises several objections, most falling comfortably within the Administration’s rule that courts should not second guess the executive branch on national security issues. Of particular interest to this Dorf on Law contributor is the officials’ complaint that the bill “would have the effect of affording a broad ‘journalist’ privilege to a potentially limitless class of people,” including those whose work bears “little resemblance to any traditional or commonly understood notions of journalism.” A footnote makes clear that the authors are specifically worried about the “huge and constantly changing community of bloggers and other amateur publishers.”

Should folks who aren’t members of the mainstream media receive protection? While most free press advocates would be inclined to say yes, there is reason to pause. Most of us think of the institutional press as an industry that aspires to certain professional ideals: objectivity, accuracy, relevance, restraint, measured respect for privacy, etc. Our willingness to provide heightened protection to journalists may stem, in part, from our belief that they act in a way that entitles them to special protection. And while traditional news organizations often fail to be as, um, fair and balanced as they claim to be, a typical newspaper or broadcaster is probably much more “professional” than a typical blogger. (For a recent discussion, see this New Yorker piece.) Therefore, if we assume that some information is truly damaging to national security, the government may have a strong interest not only in keeping such information classified, but also in doing what it can to channel inevitable leaks into the hands of journalists that will responsibly report the information, instead of amateur bloggers who might sensationalize or inaccurately report the news.

Additionally, there are formal and informal lines of communication between the institutional press and government officials. When a newspaper reporter uncovers sensitive information, officials have the chance to persuade editors to delay publication or to not run the story at all (see, e.g., The New York Times coverage of the wiretapping program), or at the very least to contextualize the information and to try and take some of the sting out of it. If I, on the other hand, were to receive a leaked copy of The Pentagon Papers 2: Revenge of Iraq, even if I wanted to, I would have no idea how to get past the switchboard at the Department of Defense, and I am ill-equipped to responsibly edit the leaked information on my own.

We should not, however, be so quick to dismiss the value of bloggers as news sources. According to a 2008 survey by The Pew Research Center for People and the Press, ten percent of the public regularly reads blogs about current events and politics, a number that is likely to grow over time. And bloggers are not only commenting on news generated by the mainstream media, they sometimes scoop traditional media on important stories. For example, Joshua Micah Mashall of the blog Talking Points Memo won a George Polk Award for his coverage of the U.S. Attorney firings scandal. And many lawyers are familiar with David Lat’s original reporting on the legal industry over at Above the Law. Lat’s ability to report on salaries, benefits, and employment trends at law firms is due in large part to tips from, presumably, young legal associates who do not reach out to The National Law Journal or other traditional media to pass on information.

So what should Congress do? I think it would be a mistake to limit protection to traditional media. Through its definition of protected journalists (“covered person”), the bill excludes casual bloggers and others who do not have the trappings of traditional reporters. The bill only offers protection to someone who, “with the primary intent to investigate events and procure material in order to disseminate to the public news,” “regularly . . . reports on such matters” by interviewing, directly observing events, or collecting original writings and other material. Further, that person can only defeat compelled disclosure of the information if she received such information with the primary intent to investigate events at the “inception of the newsgathering process.” Foreign powers, their agents, and terrorists are excluded. Finally, only information that was obtained through a promise or agreement of confidentiality is protected (on this point, the House bill is broader).

In light of these limitations, the AG's and Director’s concern about bloggers appears unfounded. Only a tiny fraction of bloggers regularly report on the news through the bill’s traditional investigative reporting methods, and even many traditional journalists would be denied protection when it came to information that they happened upon (lacking an intent at the inception of the newsgathering process) or that was not obtained through a promise of confidentiality. So the Senate has already found a viable way of extending the privilege to the Joshua Micah Marshalls of the blogoshpere, while denying it to the David Crowleys. This may be underinclusive, but for now, I can live with that, and unless the AG and Director offer more persuasive arguments, they should live with it too.

[UPDATE: A commenter asked about the scope of the bill. To clarify, the bill does not merely address the scenario in which the government is seeking information about a leak of confidential information. Rather, the bill covers, with some exceptions and limitations, any information (not just leaks or matters pertaining to national security) sought by anybody (not just the government). In responding to the officials, though, I focused on the example of a leak because their letter primarily discusses a section of the bill that deals with that particular situation. To be fair to the AG and DNI, though, their concerns extend beyond the leak scenario. The arguments raised here for and against a blogger's privilege may, of course, have greater or lesser force in other scenarios.]

-Posted by David Crowley