As early as today, the Senate Judiciary Committee will consider bipartisan legislation to reassert the right of Americans to know what their government is doing.
The bill, dubbed the Free Flow of Information Act of 2013, would give the force of law to rules announced this month by Attorney General Eric Holder to safeguard journalists and news organizations from surveillance and seizure of telephone and email records — tactics employed by the Obama administration in at least two recent investigations.
Forty-nine states, including California, and the District of Columbia already have shield laws to protect the identities of whistle-blowers and other confidential news sources.
Revelations that the FBI secretly swept up communication records for Fox News and Associated Press reporters demonstrate the need to place the same protections in federal law.
Buttressing the case is an appellate court ruling last week compelling a New York Times reporter to testify in the trial of a CIA operative charged with leaking classified information.
A panel of the Fourth U.S. Circuit Court of Appeals ruled that reporter James Risen has no First Amendment right to refuse to testify about his confidential sources. The decision, if it's allowed to stand, will have a chilling effect on investigative journalism. If promises of confidentiality are worthless, whistle-blowers will remain silent, leaving the public with fewer sources of independent information about the government.
In dissent, Judge Roger Gregory summed up the case for a federal shield law: "Protecting the reporters' privilege ensures the informed public discussion of important moral, legal and strategic issues."
On his first day in office, President Barack Obama promised to lead the most transparent administration ever. In practice, however, the administration has aggressively pursued individuals who leaked information and the journalists who published the leaked material.
The new guidelines announced by Holder would address some of the worst abuses. News organizations are to be notified before records are subpoenaed, so there's an opportunity to challenge the request. The Justice Department will release an annual tally of search warrants and subpoenas involving news organizations and reporters. Holder also said journalists won't be targeted for prosecution based solely on their news-gathering activities.
But rules only work when they are followed. Under existing Justice Department guidelines, Fox and AP should have been notified before their reporters' records were subpoenaed.