AP subpoena, Fox News search warrant demonstrate need for a federal shield law

Attorney General Eric Holder has been working overtime lately to deal with the firestorm created by two run-ins between the Department of Justice and journalists.

The department’s own disclosure that it had subpoenaed the telephone records of the Associated Press and the subsequent news that federal investigators in 2010 had obtained a search warrant to read the email of a Fox News reporter were both stunning developments. The scope of these actions were literally unprecedented, whether measured by the number of AP phone lines involved (20) and the span of time (2 months), or by the fact that a reporter was branded a criminal so Justice could sift through his email account.

Since then, Holder has been meeting with journalists in small groups to discuss the issue, and he owes President Obama a report on the incidents by mid-July. Hopefully, these meetings will lead to a reworking of the Attorney General’s guidelines (28 C.F.R. § 50.10) that lay out rules for interacting with the news media in a federal investigation. But that’s just a start.

What the incidents have laid bare is that regardless of what those regulations say, ultimately the interpretation and implementation of the rules cannot remain in the hands of those who are seeking the evidence in the first place. Currently, the application of the rules begins and ends with federal investigators. And their interpretation is suspect; they have read narrow language broadly to apply an exception to the notice requirement, and they have branded a reporter an “aider and abettor and/or co-conspirator” of a crime under the Espionage Act to get around a federal law that protects the news media from search warrants. Holder has tried to ease this news by saying that the department won’t actually prosecute a journalist under this theory, but that just shows the weakness of their judgment – say something’s a crime to get around a protective law, but don’t really treat it as a crime itself.

As we wrote in a letter to Holder joined by 51 other media organizations, “the scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public’s interest in reporting on all manner of government conduct, including matters touching on national security which lie at the heart of this case.”

So any real solution to this problem must come from those who make the laws that Justice has to follow – Congress. We need a federal shield law that requires prosecutors and investigators to convince a judge that there is a compelling justification for the information, that any reasonable alternatives have been tried first, and that notice has been given to the media so that their First Amendment interests can be defended.

Such a law would not be ideal by any means – a “qualified” privilege will never give the type of protection that we believe journalists deserve under the First Amendment. But it will at least let us avoid a situation like we’ve seen in these two episodes, where the government writes its own regulations and then avoids them by finding exceptions. Judges are not perfect in defending the First Amendment interest that let journalists inform the public about what its government is up to. But they are certainly better than leaving the determinations to prosecutors.