http://www.nationalaffairs.com/publications/detail/time-for-a-shield-law
“Should Congress create a “reporter’s privilege” that would exempt journalists from having to testify in judicial proceedings? A law that would do just is moving through Congress and probably has the best chance of passing in any time in out history.But do we need such a law, and who exactly would it protect? The usual suspects in and around the media are telling us that without it the First Amendment will be gutted. In fact, those usual suspects may be the ones who are doing the gutting. “….Gabriel Schoenfeld
The American press is in crisis, or so say many of its practitioners. Indeed, to hear journalists tell it, reporting the news has never been more difficult, particularly in the national-security arena. The secrecy practices of the U.S. government, they say, have curtailed the flow of information to the public. The Bush administration put the restrictions in place in the wake of the September 11, 2001, terrorist attacks, and the Obama administration has followed suit, continuing many of the same policies and augmenting them with an unprecedented crackdown on leaks of classified information. Over the last five years, the Obama Justice Department has pursued eight leak prosecutions — nearly triple the number under all previous presidents combined — and it has taken extraordinary steps to uncover leakers, including using subpoena powers to rummage through the private and professional email correspondence and telephone records of journalists. Further, the administration has continued to pursue New York Times reporter James Risen, insisting that he testify as a witness in the prosecution of former CIA agent and alleged leaker Jeffrey Sterling. Risen has thus far stood firm, vowing to go to jail rather than name his confidential source in court.
Not surprisingly, news outlets are protesting what they perceive to be hyper-secretive and illiberal government activity. A 2013 Washington Post editorial complained that when “journalists are threatened with or sent to jail because they refuse to give up their sources, people think twice about talking, and reporters are deterred from pursuing their mission.” The government’s actions make it harder for the press to report on what the government is doing, the Post and its allies say, and pose a threat to the freedom of the press guaranteed by the First Amendment. The Obama administration’s aggressive attempts to stop and prosecute leaks have prompted free-press advocates to renew their calls for Congress to pass a shield law.
A shield law would prevent journalists from being legally compelled to reveal the identities of their confidential sources. Such a law, which would overturn a historic Supreme Court decision, has never gained sufficient traction to pass. In this Congress, however, the effort has been making unusual headway, with some Republicans joining Democrats in pushing it forward.
The Free Flow of Information Act was approved by the Senate Judiciary Committee last September and is likely to come to the Senate floor for debate at some point this year. The bill enjoys the backing of President Obama, who opposed similar legislation in his first term. News organizations and a host of civil-liberties and transparency advocacy groups have mobilized behind it, believing that, in the words of one proponent, “[f]or the first time since the post-Watergate era, the stars are aligned” for a shield law to pass.