Congress is closer than ever to passing a federal shield law to protect reporters from being compelled to testify concerning their confidential sources and information. We could use some good investigative reporting to examine the dubious claims made by those backing the law.
One such claim is that the media today face a crisis, with journalists being subpoenaed at an unprecedented rate. In a typical characterization, a witness before the House Judiciary Committee described the number of subpoenas as a "deluge." One searching for evidence of this deluge, however, will come up dry.
There have been a handful of recent, high-profile cases involving reporters, including the CIA leak/Valerie Plame Wilson investigation, the BALCO steroids case, and the privacy act case brought by Dr. Wen Ho Lee. And in every argument supporting the shield law, these same few cases are trotted out as evidence of the overwhelming number of new subpoenas.
A handful of cases out of the countless thousands of media reports filed each year is more a trickle than a deluge. These few cases generated enormous publicity - in part precisely because it is so rare for reporters to be subpoenaed - but they are still just a few cases.
Remarkably, while shield law advocates were testifying before Congress about an alleged flood of subpoenas, the Reporters Committee for Freedom of the Press was admitting on its Web site that "we simply cannot know for certain" how many subpoenas reporters receive, or whether that number is on the rise.
Shield law supporters also claim that it has become routine for lazy prosecutors and litigants to subpoena journalists as an easy shortcut. For example, Senate Judiciary Committee Chairman Patrick Leahy, Democrat of Vermont, recently argued that "the press has become the first stop, rather than the last resort, for our government and private litigants when it comes to seeking information." Again, the facts suggest otherwise.
Department of Justice attorneys are already required by regulation to prove that they have exhausted all other reasonable alternatives before they are allowed to subpoena a journalist.
Even private litigants not bound by the DOJ regulations will subpoena the press only as a last resort. Subpoenaing a reporter almost guarantees a very lengthy and expensive legal battle that will drastically slow down a case.
Without exception, in the recent major cases involving reporters, they were subpoenaed not as a first choice but only when, according to a federal judge, the party seeking the information had exhausted all other reasonable options.
Finally, it's not true that the shield law would primarily protect innocent whistle-blowers. Journalists are most often subpoenaed in cases where the source was allegedly breaking the law by talking to the reporter. This was true in every one of the recent high-profile cases.
In such a case, there is more likely to be no other way to get the information, because there will be no witnesses to the misconduct other than the reporter. Accordingly, these are the cases where a reporter is most likely to be subpoenaed, and where a shield law is most likely to be employed.
As a result, the shield law's probable result would be primarily to encourage and shield not innocent whistle-blowers but those who illegally leak classified material, illegally disclose private personal information, or otherwise violate the law. But there is no public interest in passing legislation to promote and protect illegal conduct.
The shield law is now moving forward in Congress, accompanied by lofty rhetoric concerning the free press and protecting the flow of information to the public. Few seem interested in taking a hard look at whether that rhetoric has any real connection to what the law would actually accomplish.
That's a pity, because the federal shield law won't do what it is supposed to do, and it responds to a crisis that doesn't exist. That's the real scoop here.
Randall D. Eliason teaches white-collar criminal law at American University, Washington College of Law and George Washington University Law School. His e-mail is email@example.com.