I have mixed feelings on these sorts of laws. Being part of the legal system, I’m probably biased in favor of its prerogatives. When I judge tells someone to cough up information, generally I think the person ought to have to cough it up. However, I recognize that the First Amendment and the free flow of information it protects can benefit if sources feel like they can go to reporters and not get in trouble for doing so. And, I am inclined to protect the little guy fighting corruption that happens to have the full force of the government behind it. I want to protect Deep Throat and the types of folks who told Sy Hersch about Abu Ghraib. On the other hand, I don’t have any inclination at all to protect guys like Scooter Libby or the administration sources who leaked information to Judith Miller about the Iraq war. The other thing I am a little iffy about is the idea of giving journalists First Amendment rights that are not available to the rest of the citizenry.
These are not insurmountable objections, I don’t think, and such objections could be overcome with the right legislation. I don’t think Rep. Pence’s legislation, however, strikes the correct balance. The bill is H.R. 2102.
First of all, coverage is limited to those people who regularly gather and report news for dissemination to the public for a “substantial portion of the person’s livelihood” or for “substantial financial gain.” So, it makes protection contingent on how lucrative one’s reporting is.
Second, the protections seem to cover the likes of Scooter Libby far more comfortably than they cover the likes of Deep Throat. Among other things, disclosure can be compelled notwithstanding the law where such disclosure is purportedly necessary to prevent terrorism or threats to national security or identify people in connection with such threats or necessary to identify a person for prosecution for disclosing classified information that harms national security.
Records of a communication service provider for a “covered person” are also protected from disclosure.
Essentially, therefore, I have two main problems with this legislation – First it makes coverage contingent on a person receiving significant financial gain for one’s reporting. Second, it contains amorphous and potentially broad exceptions where national security concerns or disclosures of classified information are alleged.
In any event, my hope would be that providing specific protection in the articulated cases would not diminish protections to the extent they are already in place for those people or instances not singled out for protection. My fear is that courts would read this legislation and decide that if you’re not a “covered person,” you don’t even get the protections that were allowed before the legislation was passed.
Update I noticed that Kos put up a post expressing similar concerns. He would be protected under the “substantial financial gain” analysis but he points out that folks who post on his diaries and any number of credible bloggers would not.
More likely than not, the folks who drafted the language had their hearts in the right place. They didn’t want to limit protection to corporate journalists. But, they also didn’t want someone to be able to quickly throw up a sham blog to get some protection. Still, tying the protection to financial gain seems arbitrary and not well tailored to the intent.