Even crazy bloggers deserve safety from subpoenas

Posted Thursday, Jul. 25, 2013  comments  Print Reprints

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The government has ways to make you talk, as writer James Risen was reminded when the U.S. Court of Appeals for the Fourth Circuit ordered him last week to testify against the Central Intelligence Agency source who told him about covert operations regarding Iran’s nuclear facilities.

The court was correct that, as it stands, federal law contains no shield for reporters of the kind that exists in 49 states and the District of Columbia. But it should — not because journalists are a special category, but because anyone who publicizes information in the public interest is fulfilling the true purpose of the First Amendment.

Without protection from coercive subpoenas, we are all less than free from an executive branch that has every incentive to enforce secrecy and none to promote disclosure.

Two reasons are supposed to explain why the federal government hasn’t followed suit: the greater secrecy required by national security and the difficulty of figuring out in this day and age who should count as a journalist entitled to the privilege.

The national-security argument falls apart on closer examination. A government employee who, like soldier Bradley Manning, violates his oath and the law by stealing secrets can, of course, be prosecuted.

But by settled Department of Justice convention, anyone who publishes that stolen information subsequently is protected by the First Amendment unless he or she directly colluded in the theft itself. Once that free-speech norm is accepted, we allow that the cost of leaks to national security is one we are prepared to pay.

Indeed, the trend of modern leakers is to reveal themselves, as National Security Agency contractor Edward Snowden did, not to hide behind the people who brought their secrets to the world. Even former vice-presidential aide Lewis “Scooter” Libby, when faced with prison time, eventually agreed to let New York Times reporter Judith Miller testify that they had discussed the outing of CIA agent Valerie Plame.

The worry that a federal shield law would protect everyone, not just reporters, from subpoena is more serious — but it turns out to prove why a shield should matter to everyone.

It’s absolutely true that the institutional identities or guild norms that once tenuously held together a category known as “journalists” have broken down. No politician mewling to supporters about the 47 percent who won’t vote for him is ever going to forget it again.

That means a federal shield law couldn’t protect only “journalists,” but would also have to draw a line based on function, not profession.

And the function of the free press is, conveniently enough, independent of journalistic professionalism. It is, simply, to make information and opinion public so as to enable people to form their own judgments.

This goal would make perfect sense to our Founding Fathers, who had never heard of journalistic ethics and would have found the idea risible if they had.

The lonely pamphleteer whom the First Amendment was designed to protect from prior restraint was the precursor of the crazy blogger you love to hate, not of Walter Cronkite.

Under our Constitution, then, who promotes the value of supervising government through public opinion? Not just journalists, but everyone with information or an opinion to share. Anyone publishing information for the public interest is protected by the First Amendment — and that same anyone should get the protection of a shield from subpoena.

Herein lies the basic structural reason a shield is needed: It provides a tool for us, the public, to supervise and evaluate the work of a presidential administration that is supposed to be working for us.

The keeping of secrets is a necessary element of exercising power; like all such powers, it needs to be limited to protect the liberty of citizens.

Noah Feldman, a law professor at Harvard University, is a Bloomberg View columnist. nfeldman@law.harvard.edu

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