Lovejoy Journalism and News Literacy

A Law to Shield Reporters
By Philip Taubman


After years of debate and hesitation, Congress seems on the verge of approving a shield law for reporters. It’s about time.

The idea gained the critical endorsement of the White House recently, after it tempered its opposition to some aspects of the proposed law.

American democracy would be the winner if the shield law is approved and signed by President Obama. As journalists have learned the hard way over the years, freedom of the press is not an absolute right under the Constitution, at least as interpreted by the courts.

Numerous reporters have been pursued by government officials interested in learning the source of stories. Some have spent time in prison and the surge of prosecutorial activity during the presidency of George W. Bush had a chilling effect on news reporting.

I saw this as Washington bureau chief of The New York Times when the paper published Jim Risen and Eric Lichtblau’s landmark story about the National Security Agency’s warrantless eavesdropping program. Not long after publication in December of 2005, federal prosecutors initiated a grand jury investigation of the story and how Eric and Jim learned that President Bush had secretly authorized the N.S.A. to conduct domestic spying outside the purview of the Foreign Intelligence Surveillance Act.

The act, approved in 1978 (see the original act and amendments here), set up a special court – the Foreign Intelligence Surveillance Court, known as the F.I.S.A. court – to review government requests for warrants to wiretap on United States territory in the course of intelligence and national security investigations. The Bush operation bypassed the court, as officials intercepted international telephone and Internet communications looking for terrorists and their plots.

Some of the communications that originated overseas also involved people in the United States, which should have triggered the requirement for a court order.

There was a serious threat that the government would demand that Jim and Eric identify their sources or face punishment, including possible jail time. There was also discussion in the government about charging The New York Times with violating signals intelligence statutes which, in effect, would have been akin to accusing the newspaper of treason.

While the shield law under consideration in Congress is not an impervious defense against irresponsible government pursuit of news organizations, it would be a major improvement over the current landscape. There is no federal shield law;  about three-quarters of the states have some form of shield, though the degree of protection varies significantly.

According to Charlie Savage’s piece in Saturday’s Times:

"In civil cases, the litigants seeking to force reporters to testify would first have to exhaust all other means of obtaining the information. Even then, the judge would apply a “balancing test” and the burden would be on the information seekers to show by a “preponderance of the evidence” why their need for the testimony outweighed the public’s interest in news gathering.

Ordinary criminal cases, as in prosecutors’ effort to find out who leaked grand jury information about professional athletes’ steroid use to the San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors.

Most cases involving disclosure of classified information would work the same way as criminal cases…"


In the case of the NSA wiretapping story, the government argued strenuously with Times editors that publication would endanger national security by exposing a vital technique for detecting and preventing terrorist attacks. The paper held the story for a year, partly because of those arguments. I endorsed that decision.

When we decided to publish, Times editors were convinced that the public’s right to know about the program outweighed the government’s interest in hiding it. I have no doubt that was the right decision. A balancing test would show that the extra-legal measures taken by the Bush Administration, while perhaps understandable in the immediate aftermath of the 9/11 attacks, involved legal and constitutional issues that cried out for public discussion and Congressional involvement.

Philip Taubman is a consulting professor at the Center for International Security and Cooperation at Stanford University, where he is working on a book project about nuclear threats and the joint effort of Sid Drell, Henry Kissinger, Sam Nunn, Bill Perry and George Shultz to reduce nuclear dangers. Before joining CISAC in the fall of 2008, Mr. Taubman worked at The New York Times as a reporter and editor for nearly 30 years, specializing in national security issues, including intelligence and defense policies and operations.