The shield flaw

LITTLE ROCK — THEIR HEARTS are in the right place, God love 'em. They're really not trying to mess things up-even if that's what they're about to do. We in the press are almost obliged to feel grateful to these lawmakers who are out to protect us.

But we don't.

The U.S. House of Representatives passed a bill last week that would protect us inky wretches from being forced to reveal our confidential sources in federal courts. Dragging reporters into court and demanding they open their notebooks-along with their laptops, Blackberries and anything else the government might want-has become all the rage among prosecutors in recent years. It figures: Why should the government's lawyers go through the hassle of investigating an alleged crime when some reporter has already done the investigating for them? Why not slap a subpoena on the newshound and give him a choice: Sing or get used to life in an orange jumpsuit. (See Judith Miller, the New York Times, and the whole, strange tale of Valerie Plame, formerly of the CIA).

Why can't a prosecutor, who has heaps of time, money and subpoenas, uncover the same information that a reporter-with little time, less money and no subpoenas-has unearthed? Can't the prosecutor dig like anybody else? Or does it just gall him to see some elusive fact aired in the local daily? Do prosecutorial types just have it in for a particular journalist-you know how pesky those people can be-and want to lock her up? Or maybe, just maybe, the prosecutors are guilty of a much simpler flaw: being lazy.

YES, THERE are exceptional cases in which a reporter is so much part of the offense-as in leaking classified information-that there's no way to enforce the law without his testimony. But of late the exception has threatened to become the rule.

The reality is that some people will say things to a reporter they wouldn't say to anybody else. Especially not the cops. And especially if they can be assured of anonymity, which makes some folks braver than they ordinarily would be. Or maybe the source is a true public servant who just wants to let American people know what's being done in their name-but without sacrificing his career in the process. Confidentiality has its uses. Unless, of course, a reporter is compelled to reveal a source's identity in court. (Again, see Miller, J.)

You can imagine the effect a good, nasty prosecutor can have on anybody who even thinks of talking Off The Record. Sources will be less inclined to speak out. Fewer stories on dirty deeds in government come to light. Citizens know less about their government. Open government closes up.

Or so goes the argument from the folks who would fix this problem with an alltoo-simple law. To quote H.R. 2102, the bill that the House has passed: "In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism . . . ."

Uh oh. In order to protect journalists, this law does something American government should take great pains not to do: defining who is-and who isn't-engaging in journalism. Once the law can decide who's an Official, Protected Journalist, it can also decide who isn't. That way lies restricting freedom of the press, not protecting it.

Consider how things work in some other countries. There the government doesn't just get to say who is and who is not an official journalist, but may insist that journalists be licensed before plying their trade. You can guess what happens next: When one of these periodistas ticks off Big Brother . . . no more license, no more journalism. And sometimes no more journalist. It's been known to happen. With some regularity.

So how does H.R. 2102 define a journalist? As "a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain."

Which is all to breathlessly say: Just about everybody who gets paid to break news. But what about those who practice journalism just for the thrill of it? Like bloggers, those folks in pajamas Dan Rather used to dis before they did him in. What about internet discussion boards, amateur whistleblowers, and others for whom breaking news is a hobby or a duty but not a job? If these folks aren't exercising their freedom of the press, who is? Even if they don't derive a substantial portion of their livelihood from journalism, or get paid for a big scoop. Freedom of the press, thank goodness, isn't limited to the press in this country. Nor should it be. The professionalization of the press by statute is the first step towards licensing and controlling it-and we can think of few things less in the spirit of the First Amendment.

You have to wonder: Is this really a shield law for journalists? It sounds more like a shield law only for formally recognized, certified, government-accredited and card-carrying journalists who have an active lobby in Washington-and to heck with the little guys. But the amateurs may need protection more than any professional journo, who can at least call on the resources of his publisher when the prosecutors come calling.

There are other ways around this problem than an awkward law that may infringe on freedom of the press rather than protect it. An idea: How about prosecutors showing more initiative and energy rather than depending on the press to do their work for them? Isn't that pretty much what the law-confused and complex as it is-now generally recommends?

A suggestion: Stick with the status quo, fight each fight in court, and be prepared to watch journalists keep their word and go to prison for it. It is, after all, what we signed on for. Nobody ever said this job was easy.

BESIDES threatening the press in the guise of protecting it, such shield laws don't do much for national security, either-and the press is at least as threatened by terrorism as any other sector of the American public. Already that security has been weakened by newspapers like the New York Times that reveal sensitive information like the CIA and Treasury Department's attempt to track and disrupt al-Qaida's financial network through the international SWIFT banking system. Ditto, the National Security Agency's efforts to track international calls between terrorists and their contacts in this country, so often mischaracterized as a domestic spying program. The effectiveness of that program, too, was undermined by its exposure in a news story.

Do we really want to make it harder to prevent leaks about such programs by immunizing the press from having to reveal its sources? Not long ago, someone in government, perhaps inadvertently, leaked the news that al-Qaida's web servers had been successfully tapped. Whether the source was just bragging or had some more nefarious motive, the damage was severe. The immediate result of the story, predictably enough, was that al-Qaida shut down its internet operation, depriving Western intelligence agencies of a valuable source of information. Unfortunately, there's no criminal statute against carelessness or stupidity, but encouraging more leaks like this one by passing a shield law wouldn't help anyone, including the press. Terrorists are out to kill Americans regardless of occupation.

The sponsors of this federal shield law point out that it contains a lot of language designed to protect national security, at least in theory. But for all their legalese, these wispy phrases about preventing significant dangers to public safety by allowing law enforcement to find out the identity of leakers amounts to little more than a loose restatement of what the law now vaguely is. Sometimes the best way to protect the press as well as the public is not to add still more clutter to the statute books, as much as the politicians would like to please the establishment press, but to enforce those laws we already have with both discretion and energy. That may be easier said than done, but adding another layer of legal fluff to the balance between the public's right to know and its need to be safe may only obscure the hard choices both lawmen and newsmen must make.