Change Watch: Obama disappoints on media shield law

In another policy flip-flop by Barack Obama, the White House is fighting legislation that could keep journalists out of jail if they decline to violate the trust of sources in cases the government says involve national security. Revisions sent by the administration to Congress would significantly weaken provisions of the Free Flow of Information act that protect reporters from being strong-armed into testifying against confidential sources without judicial review. In an editorial in today's edition, The Miami Herald writes that

[t]he Obama administration's efforts to impede Senate approval of a law designed to protect reporters from punishment if they refuse to divulge confidential sources are both surprising and utterly disappointing.

As a candidate, Sen. Obama endorsed the "media shield" that allows courts to decide whether a confidential source deserves protection. (So did Sen. John McCain, the Republican contender.) As a senator, Mr. Obama co-sponsored an earlier version of the bill that the Senate Judiciary Committee is considering.

Now that he's the decider, Mr. Obama has developed cold feet. Last week, he let lawmakers know that he wanted the bill changed in a way that would cripple key provisions on when and how to invoke protections for reporters and their sources. This would gut the essential provisions of the proposed law.

No one disputes that there are instances when the government should have the right to compel information to safeguard the public. That is why all versions of the bill offer a qualified, rather than absolute privilege, with courts providing meaningful judicial review to determine when the "media shield" should come into play.

It also requires prosecutors to make reporters the last stop, not the first stop, for finding the source of information. More important, it offers a balancing test that weighs the needs of the government for information against "the public interest in gathering news and maintaining the free flow of information."

Disappointing? For sure. Surprising? Hardly. It was always clear that the military and intelligence communities had no reason to fear candidate Obama. The choice of Joe Biden for veep, the promise to expand the war in Afghansitan, the belligerence toward Iran and Parkistan, all were intended to reassure the security state that it would be safe in the hands of President Obama.

The act currently under consideration may be another case where no law would be better than a bad law. The U.S. Constitution lays out the parameters unequivocally: "Congress shall make no law ... abridging the freedom of speech, or of the press." If the courts and the executive need reminders and guidelines to assure that this simple requirement is met, then the legislature is duty-bound to supply them. But the legislature is not required to give the executive cover for end runs around constitutional protections. Without legislative "clarifications," no law would mean no law; the Constitution is so straightforward, federal courts can't stray far from upholding the First Amendment without resorting to sophistry. Rather than bow to authoritarian impulses of the executive, the legislature should just leave the Obama White House to live with the Constitution.

The rest of the story: Obama disappoints on media shield law (editorial, The Miami Herald 2009-10-06)

See, also: A Change That’s Hard to Believe In - Obama calls backsies on shield law by Clint Hendler (Columbia Journalism Review 2009-10-02)
White House Proposes Changes in Bill Protecting Reporters’ Confidentiality by Charlie Savage (New York Times 2009-09-30)