Brad A. Greenberg (Columbia University - Law School) has posted The Federal Media Shield Folly (Washington University Law Review, Vol. 91, No. 437, 2013) on SSRN. Here is the abstract:
The Free Flow of Information Act of 2013 purports to “maintain the free flow of information to the public” by providing various degrees of protection to journalists, conditioned on whether the matter is germane to a civil or criminal case, or relates to national security. Journalists and publishers from traditional media overwhelmingly have endorsed the bill and urged passage; the bill also enjoys bipartisan support in the Senate and from President Obama. The only cognizable debate has concerned whether the law should limit its scope to professional journalists or extend to anyone doing journalism. However, the bill, which purports to preserve the flow of information by protecting sources’ expectations of confidentiality, would do little to thwart government pursuit of reporters’ records; worse, it distracts public debate from a more serious threat to press freedom.
While discussing the breadth of the shield’s national security exception, this Essay focuses on two core concerns regarding shield’s ability to serve its stated purpose. The first is substantive, namely that the bill overlooks the 800-pound gorilla known as the third-party doctrine. In 1979, the Supreme Court, colored by experiences of dialing a switchboard and asking an operator to connect the caller with a given phone number, held that an individual did not have a Fourth Amendment interest in his phone records. In light of contemporary reporting practices and the third-party doctrine’s expansion to cellular and digital technologies, I argue that any meaningful shield must burden access to phone, e-mail, and related records. Second, I address a practical concern. Internal Justice Department guidelines indicate that a reporter can only be subpoenaed with the approval of the Attorney General. Yet, if passed, a federal reporter shield law would diffuse responsibility across Congress and the Judiciary — in effect, reciprocally shielding the Executive Branch from public accountability.
While the substantive concern suggests that the bill needs further reworking to provide the proscribed protections, the practical account implies that some shield laws would confer more cost than benefit. Whereas journalism advocates tend to see the shield debate as binary — yes or no, good or bad — it is riddled with complexity. That is, some shield is not necessarily better than no shield. Yet, in light of recent threats to the free flow of information and the democratic role information plays in empowering people and holding officials accountable, additional protections are needed. In this Essay, I argue that, at the least, the shield bill in Congress needs to provide stronger limitations on the third-party doctrine. Without those reforms, a reporter can give a source little guarantee of confidentiality.