Balancing free speech and accountability

President Barack Obama promised to run the most “open” and “transparent” administration in history, but his administration has developed a reputation for investigating leaks far more aggressively than even the Bush administration. President Obama admitted last month that since 2009, his administration has filed six criminal prosecutions for leaks under the 1917 Espionage Act, which was designed to punish spies and traitors, not whistleblowers. That’s double the number of all other administrations combined.

Mainstream journalists covered the issue only sporadically until they discovered last month that investigators seized email and phone records from reporters at the Associated Press and Fox News. For journalists, that struck close to home, and it tied in with unfolding stories about the IRS targeting conservative groups and questions about the Benghazi attack in Libya.

Now journalists are complaining that as a result of the administration’s aggressive leak investigations, which include more than just the six prosecutions, confidential sources are drying up, making it more difficult to keep the government accountable. The furor has revived calls for more protection for journalists, especially a federal “shield law” to protect them from being forced to give up the names of confidential sources.

But it’s not clear whether that’s a good idea either. At stake is the tricky balance between First Amendment rights on one hand and the government’s need to administer justice and protect national security on the other.

In recent weeks, the administration has acknowledged secretly seizing portions of two months of phone records from the AP, involving thousands of calls and more than 100 reporters, with no advance warning to let the organization oppose the seizure in court. The seizure was part of an investigation into who leaked information to AP reporters for a May 7, 2012, story about a foiled plot in Yemen to bomb a U.S.-bound airliner.

In a separate investigation, the government also seized the emails of Fox News reporter James Rosen and used security records to track his movements within the State Department building. A judge approved the move as part of the 2010 prosecution of Stephen Kim, a State Department adviser accused of leaking information about North Korea. The search warrant said Rosen could be a “co-conspirator” to the crime because he tried to cajole Kim into providing information. Prosecutors never charged Rosen, but many journalists felt he came dangerously close to being criminalized for doing his job.

Obama said he is “troubled” by the possibility the investigations are chilling reporting, but many journalists doubt he means it. In a lengthy opinion piece, Washington Post Vice President Leonard Downie Jr. wrote that because of the administration’s “steadily escalating war on leaks,” some of which involve interviewing hundreds of officials, Post reporters say their usual government sources are being intimidated into silence. He also suggested that some of the investigations, involving information about government muck-ups, seemed more about punishing whistleblowers than guarding national security.

Under intense pressure, President Obama justified the investigations as necessary. “As commander in chief, I believe we must keep information secret that protects our operations and our people in the field,” he said. “To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information.”

The squabble has also intensified pressure on Attorney General Eric Holder, already under fire for questions about the approval of drone strikes and the IRS targeting conservative groups. Republicans now suspect him of perjury in the Rosen case.

In May, Holder told a congressional committee under oath that he was not involved in any prosecution of a journalist, but a subpoena for the Rosen search bears his signature. Holder’s supporters point out he could have been involved in the investigation but never intended to prosecute. House Judiciary Committee Chairman Bob Goodlatte has asked Holder to explain himself in writing, with a response due Wednesday. The furor has even drawn bipartisan ire: Unnamed White House sources told The New York Times that “some in the West Wing privately tell associates they wish [Holder] would step down, viewing him as politically maladroit.”

Democratic Sen. Chuck Schumer of New York said two weeks ago that a group of eight senators, four from each party, will look at setting rules on how leaks are investigated. He also promised to reintroduce, with Republican Lindsey Graham, a media shield law similar to a bill that failed in 2009, an idea President Obama endorsed.

Forty states already have shield laws and nine others offer some protection, according to the Student Press Law Center. The federal law’s supporters believe it would provide a consistent national standard and apply to federal cases. Schumer said his proposed shield law would not be absolute. Instead, it would require federal judges to balance national security with the value of the “free flow of information” by ensuring journalists could make their cases in court.

But it’s not clear that Schumer’s law would have prevented the seizure of Rosen’s emails or the AP phone records, given the national security exemption. And the potential effects of a shield law are a mixed bag, at best.

The defining U.S. Supreme Court ruling on whether the government can force reporters to give up sources is Branzburg v. Hayes, delivered in 1972. That 5-4 ruling found no special constitutional right for reporters to withhold sources from a grand jury. Just like any other citizen, reporters must answer questions under oath to ensure that courts can administer justice.

The dissenters wrote that reporters should be able to protect confidential sources unless the government can show that information in which the state has a compelling interest can’t be obtained any other way.

But the swing vote, Justice Lewis Powell, sided with the majority and then wrote a concurring opinion that seemed to side with the dissenters, saying that if circumstances had been different he might have voted for what is now known as a “reporter’s privilege.” Subsequent rulings from lower courts have followed Branzburg in grand jury cases, but a few have fashioned a kind of common law-based right to protect sources in criminal cases, and many courts regularly recognize a reporters’ privilege in civil cases.

Most in the news media are dissatisfied with this compromise, and so advocate for a federal shield law. But a handful of critics, such as the Washington Post’s Walter Pincus, have pointed out that the main problem with shield laws is defining the term journalist. Do pajama-clad bloggers count as reporters, and what qualifies as a news organization?

Moreover, giving the government power to define who qualifies as a journalist—and whose speech is therefore more free—would allow the government to take for itself new powers that could be used to restrict First Amendment rights in other ways.

Another problem: Shield laws help journalists keep government accountable, but they make it much harder to keep journalists accountable and root out those who leak information for their own benefit. As New York Times columnist Anthony Lewis pointed out in 2007, under current libel law, a reckless or dishonest reporter need only cite “unnamed” sources for his false and defamatory material and then refuse to give up names to avoid paying damages to his victims.

It’s uncertain where the debate will go from here. The 2009 attempt to pass a federal shield law collapsed after colliding with the news that Pfc. Bradley Manning sent hundreds of thousands of classified documents to the anti-secrecy website WikiLeaks. His court martial trial began Monday. President Obama has asked the Justice Department to review its subpoena guidelines for journalists and report back to him by July 12.

The Associated Press contributed to this report.