Sen. Jon Kyl, R-Ariz., has to make a choice. Will he stand up for the principle that journalists should be at arms’ length from police authorities and the courts to provide independent news accounts, a principle that Arizona law strongly supports?
Or will Kyl stand with President Bush against a federal law that would provide reporters with a limited shield against government attempts to unveil confidential sources and unpublished material?
All eight of Kyl’s Arizona colleagues in the U.S. House of Representatives choose Tuesday to stand for the future of the American free press, joining the 398-21 majority who voted to approve the Free Flow of Information Act of 2007. Commonly referred to as a media shield bill, HR2012 would offer journalists protection from investigators and prosecutors who want testimony about sources and information not disclosed to the public. Arizona and 48 other states already employ such protection either through statutes or common law.
The reason is simple. If the government can routinely force journalists to reveal behind-the-scene details and to break promises to sources, reporters and bloggers can be transformed into de facto government agents and become nothing more than mouthpieces for those in power. The public would lose a critical watchdog and conduit for challenging tyranny, which is the whole intent of recognizing a free press as a First Amendment right.
While federal law never has formally offered such a shield, the Justice Department applied this principle for decades and investigators normally sought testimony from journalists only when they had nowhere else to turn. But the Bush administration and special prosecutors recently have treated reporters as unwilling partners in fishing ventures that often produce little useful information. This was highlighted by the case of outed CIA agent Valerie Plame, in which U.S. Attorney Patrick Fitzgerald jailed then-New York Times reporter Judith Miller for refusing to participate in his witch hunt (ironically against White House officials). Only later did the public learn Fitzgerald had known the original source of the leak from the earliest stage of the investigation.
The current congressional proposal strikes a balance between protecting journalists, national security, sensitive criminal investigations and private trade secrets. Reporters still could be compelled to talk if there’s a threat of immediate harm or if investigators can show they can’t get the information elsewhere.
Unlike the House, passage of a federal shield bill in the Senate to stop a frightening abuse of power is far from certain. A variety of media advocates have fingered Kyl as the main obstacle as he continues to offer amendments reflecting concerns he shares with the Bush administration. The withering criticism is a nod to Kyl’s influence on Capitol Hill, but he has found it rather frustrating.
“I’m not out to keep the bill from passing or some other nefarious purpose,” Kyl told us. “But I read bills and I truly care about national security.”
Kyl has been a man of his word at other times when his agenda has clashed with media interests, so we want to give him some leeway here. But he has to accept that the Bush administration will never support a federal shield law. The White House has too much vested in hiding its secrets and too little respect for the role of the media in a free society. Just last week, Attorney General nominee Michael Mukasey repeated before a Senate committee objections offered previously by the Justice Department and the Office of the National Intelligence Director.
Arizona’s shield law has allowed the media to aggressively pursue stories in the public interest without unduly hindering government investigations and civil lawsuits. Kyl must decide soon if he will support a similar policy for the federal government, or if he will enable the gradual erosion of the media as an independent voice of the people.