When I was a teen-ager and studying journalism in an after-school program, I had an instructor named Bill Farr. Bill was an L.A. Times reporter who had gone to jail for forty-six days in the early seventies for refusing to reveal his sources in a story about the Manson trial. He was a cheerful, easygoing guy, and even when he’d occasionally refer to himself as a jailbird, it was hard for me to imagine him going through something so extreme. Bill was also modest, in the way of certain old-school reporters. He hadn’t, he’s said, done anything that any decent reporter wouldn’t do. He hoped we wouldn’t have to, but he said he knew we’d be willing to do the same, because unless sources could trust us to keep them confidential, they wouldn’t tell us important things that the public had a right to know.
I found myself thinking about Bill this week. It seems clear that the Justice Department’s secret investigation of A.P. reporters’ phone records and the I.R.S.’s targeting of conservative groups have the potential to damage both the Obama legacy and the already-tattered public trust in the federal government for years to come. (The Benghazi scandal, by contrast, may cause more trouble for Hillary Clinton’s Presidential campaign.) What isn’t clear yet is how much either can be traced to the President himself or his approach to free expression.
This isn’t a matter of tracking down an order Obama gave. He certainly played no role in egging on those overeager I.R.S. employees in Cincinnati. He apparently did not know about the subpoenas of more than a hundred A.P. reporters’ phone records, a fishing expedition to find the government source who might have leaked information about a thwarted plot to bomb an airliner. But it could be a matter of attitude—toward leaks, toward the press, and toward what can be justified in the name of national security—that sifts down from the top. As reporters like Steve Coll and Jane Mayer have shown, this is an Administration that is uncommonly touchy about government officials who leak to the press, even as, like all governments, it engages in strategic or self-aggrandizing leaks on a regular basis. Under Obama’s Attorney General, Eric Holder, there have been six prosecutions for leaks—more than under any previous Administration. (Some were carry-overs from the Bush era, and Holder has boasted about his aggressiveness on this front to Republicans in Congress who have complained about breaches in national security.) These prosecutions increasingly rely on the Espionage Act, a First World War-era piece of legislation that, as Emily Bazelon points out in Slate this week, was never meant to target journalists or even their sources.
On Thursday, President Obama called on Congress to revive a federal shield law that would protect reporters from the sort of thing the Justice Department has done to the A.P. This was ironic on two counts. There was the notion of the President asking that Congress tie the Administration’s hands, but all right, we all need rules, and late in the game is better than never. But then there was the fact that rules already in place should have prevented the intrusion on the A.P. As Lynn Oberlander, The New Yorker’s general counsel, pointed out in a post this week, the Justice Department’s own guidelines call for the government to inform news organizations when it issues such subpoenas (it was the phone companies that received the actual request in this case), allowing journalists the chance to contest them in court. Oberlander notes that the courts are generally on the government’s side, so not going to them is more of a point of principle than practicality. The guidelines also call on the government to focus its investigations as narrowly as possible. Neither of those conditions was satisfied in the probe of the A.P.
Still, the shield law is a good idea—it would bring the federal government in line with forty states that already have such legislation—and Obama’s endorsement of it this week would have seemed like a ringing blow for the First Amendment if it weren’t for the Administration’s history with this very bill. Unfortunately, it’s one that suggests something less than a full commitment to the free flow of information.
In the fall of 2009, Senator Chuck Schumer and then-Senator Arlen Specter, both Democrats, introduced a bill that would have prevented the federal government, under most circumstances, from compelling a journalist to reveal a confidential source. Similar bills have been introduced in the House, by Republican Representative Mike Pence of Indiana. The Obama Administration proposed major revisions to the bill that, in the view of its supporters, essentially gutted it. The revisions created an exception for any matters that the executive branch said posed a threat to national security—and, as the Times reported, judges were “instructed to be deferential to executive branch assertions about whether a leak caused or was likely to cause such harm, according to officials familiar with the proposal.” Schumer declared that “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation.”
Indeed, it did not pass. In part, it foundered on debates in the Senate about the definition of a journalist. WikiLeaks had begun releasing government cables, and that raised a new (and reasonable) question of who, for the purposes of the law, belonged to the protected category of legitimate news-gatherers. But Schumer also seems to have been right in his diagnosis. The bill had been substantially weakened, and though Obama had voted for a shield law when he was a senator, as President he did not support a strong one.
Maybe, as Bill Farr told us, things like leak investigations won’t stop journalists, because we’ll do our jobs whatever the risk. I hope that’s true. But I know it’s true that no matter what a reporter is willing to do, if a government is willing to subpoena her phone records, then sources are going to be less willing to talk—it’s the chilling effect, a cliché but a truth, too. And it’s an effect that can take hold deeply and perniciously in an atmosphere of national threat. We can’t let it, because this particular threat—terrorism—and the war on it are open-ended. We could be suspending our civil liberties forever.