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Responding to The Washington Post's Walter Pincus on Leaks and Shield Laws

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 31, 2013

Washington Post national security reporter Walter Pincus has recently written several columns criticizing the press and First Amendment advocates, like the ACLU, for their concern over the recent revelations of aggressive national security leak investigations and calls for a federal reporter shield law to protect the identity of anonymous sources. (Those columns ran on May 29, May 27 and May 20.)

Given the ACLU’s ongoing concern with the leaks inquiries, and our support for a shield law, I should respond to a couple of points.

In his May 27 column, Pincus addresses the James Rosen investigation, in which the government obtained the Fox News reporter’s email and phone records following a report based on classified information about North Korea’s nuclear program. (Read more about the case here.)

Pincus writes that when “First Amendment advocates say Rosen was ‘falsely’ characterized as a co-conspirator, they do not understand the law.” That mischaracterizes the objection. It doesn’t matter if Mr. Rosen were “falsely” or “truly” accused of being a co-conspirator. Under the plain language of 18 U.S.C. § 793(g), encouraging someone to disclose classified information could constitute conspiracy to violate the Espionage Act. Applying that law to reporters engaged in newsgathering (i.e., encouraging somebody to tell you things), makes every media inquiry designed to elicit the disclosure of classified information a potential criminal act. That’s the problem, and it’s one of constitutional scope.

In the May 29 column, Mr. Pincus criticizes proposed reporter shield laws, which would require a judge to sign off on government requests for information from reporters, and would provide special protection for anonymous sources. He argues that because it’s tricky to define who qualifies as a journalist, the government could selectively apply the law to disadvantage certain disfavored groups. That is absolutely a legitimate concern, one The Washington Times also made well. The answer, however, is not blanket opposition to a bill, but support for a law that covers everyone collecting information for dissemination to the public, period, including the proverbial “lonely pamphleteer.”

The fact is, even under the existing, and weak, qualified reporters’ privilege that is recognized in some courts, judges already wrestle with this difficult question. Now, if the shield bill that ends up passing contains a crabbed definition of journalist, we’ll have to have another conversation. Until that point, however, we should support a strong bill with a broad definition.

Mr. Pincus also argues that shield laws result in “media lobbyists going to Congress to seek a privilege from the lawmakers journalists cover,” and that the priest-penitent, therapist-patient and other privileges are court-made and thus less susceptible to politicization. Again, this is a legitimate concern. Unfortunately, especially on a federal level, a qualified reporter privilege is a tough sell to a judge for exactly the reason Pincus points out: a federal reporter shield implicates spies and drones, and judges are highly deferential to the executive branch in national security cases. Unlike the priest-penitent privilege, which is an easy sell to the courts, Congress is the only hope for a uniform federal rule.

Finally, Pincus echoes the common refrain among those who defend the Justice Department’s leaks inquiries: that the unauthorized disclosures here did not involve “whistleblowing.” In the case of the James Rosen story, Pincus argues that there was real national security harm when the story “alerted the North Koreans that the United States had penetrated their leadership circle.” With the AP story, Pincus says, the leaker “caused the abrupt end to a secret, joint U.S./Saudi/British operation in Yemen that offered valuable intelligence against al-Qaeda in the Arabian Peninsula.”

First, we can’t say one way or the other whether these claims of harm are true, because everything else about the investigation and the two stories is classified. That’s a problem. But, second, the leaks themselves are almost beside the point. (Now, I grant that disclosing the identity of an undercover agent is one of those narrow categories of information that can and should be classified, but the AP story never mentioned a mole.)

Under First Amendment law, there’s the concept of “breathing room.” That is, otherwise “low-value” speech (like garden variety lies) must be protected to avoid censorship of socially valuable speech. A similar notion should apply here. The vast majority of “leaks”—and they happen every day in Washington—are self-serving. It’s an agency fighting for turf, a public official trying to frame a policy dispute or somebody sending up a trial balloon. But, leaks that are indisputably in the public interest—like the disclosure of the president’s targeted killing program or the existence of CIA secret prisons under the Bush administration, known as “black sites”—are sprinkled in here and there, and it’s often difficult to distinguish the “good” from the “bad.”

The only answer in a free country is to maximize public disclosure by giving reporters the benefit of the legal doubt. That means reporters should be absolutely privileged from being forced to disclose the identity of their anonymous sources in all but the narrowest of circumstances. The Justice Department’s subpoena in The Associated Press case and search warrant in the James Rosen case simply went too far.

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