USA doesn’t need shield law

The Internet age provides unprecedented access to information. From WikiLeaks and Edward Snowden to more traditional leaks to the news media, government secrets are being revealed at a record pace. It’s a particularly tough time to claim we need a federal shield law for reporters.

The premise is that, without the law, confidential sources will be afraid to come forward. History teaches us otherwise. We’ve never had a federal shield law, yet our robust free press continues to thrive and sources appear undeterred.

The truth is, potential sources probably wouldn’t be influenced much by the proposed law. It’s so complicated that neither the source nor the reporter could be sure it would apply in a given case. (It’s unlikely, for example, that it would have shielded James Risen’s source.)

But the shield law is worse than unnecessary: It’s constitutionally suspect. It contains a lengthy and convoluted definition of a “covered journalist” that includes the mainstream news media but excludes many independent reporters, bloggers and less traditional outlets such as WikiLeaks.

Allowing the government to define who is an “approved” journalist deserving of special legal protections is hard to square with our First Amendment heritage.

Finally, although the government undoubtedly classifies too much material, true national security information does need to be protected. If classified material is leaked, the reporter would be the key witness. Yet, with narrow exceptions, the proposed privilege would potentially apply even when the leak itself is a crime.

It makes no sense to criminalize the disclosure of classified material and then pass a law that facilitates such disclosures. If the government keeps too many secrets, we should reform the laws on classifying information. We should not respond by making all leaks easier — including those that might be truly harmful.

Cases in which journalists are subpoenaed for confidential information tend to be high profile but are extremely rare. The proposed shield law is a misguided measure that would create more problems than it would solve.

Randall D. Eliason, a former federal prosecutor, teaches law in Washington, D.C.