U.S. shield law would serve public interest
It’s a rare day when federal lawmakers outpace some of their state counterparts in solving a problem, but the House’s passage of a federal shield law for journalists may do precisely that.
Protecting members of the media from legal interloping into their sources and communications is essential to a free press, and the House should be commended for its action. Now the Senate should follow suit in passing this essential legislation.
Though the Founding Fathers enshrined press freedom in the First Amendment, only a decade passed before Congress passed the Alien and Sedition Acts to limit speech critical of the government, including by journalists. American history is rife with instances of media speaking truth to power — and power lashing out in response.
Journalism — and, in turn, the public’s understanding of their communities — depends on the free and open exchange of facts. Some of the most compelling and important stories hinge on unsavory characters, illegal activities or earnest citizens who may face punishment for speaking to the media.
To write a story about fentanyl use, for instance, might find a reporter speaking to drug users and dealers. Stories about abortion may now put journalists in touch with those violating the law. Write about corruption in government and many sources will only speak if assured of anonymity.
It’s critical, then, that journalists be protected from prosecution for their work and, broadly, should not be compelled to disclose sources or sensitive information.
The Supreme Court agreed in 1972 when, in Branzburg v. Hayes, the justices decided that a reporter for The Courier-Journal in Louisville, Ky., couldn’t be compelled by a grand jury to reveal two sources for an article about illegal drug use.
That precedent has been bolstered by subsequent court decisions and formed the basis for the first state shield laws, formally extending qualified privilege to members of the working media. But Virginia is one of only nine states that do not have a shield law. In recent years, state Sen. Danica Roem, a former journalist, has introduced legislation to extend protections to media members in Virginia, only to see those efforts die in the General Assembly.
Setting aside those bills has not alleviated the need for them.
Virginia’s lack of shield law came under scrutiny last year when former state Sen. Joe Morrisey sought to obtain text messages from Brandon Jarvis of The Virginia Scope following a series of stories Jarvis wrote about a custody battle between Morrisey and his wife. A District Court judge quashed Morrisey’s subpoena but kept open a door that would require Jarvis to provide his communications to the court.
That’s a familiar pattern: someone in elected office using the courts to suppress information or intimidate a journalist. It’s enabled by the absence of protections for media members, and grows more pressing when the subject of reporting isn’t one state senator’s divorce but the abuse of power, corruption or illegality at the highest levels of government.
Though the House has passed versions on several occasions, the Senate has not, owing to concerns about reporting on national security issues.
Some fear that shield laws could make disclosures, such as those by Edward Snowden or Reality Winner, more difficult to prosecute and encourage further revelations that run counter to the nation’s interests.
But here, again, is a chance to see this important work done. The House passed the PRESS Act on Jan. 20, and it includes robust protection for media but also exemptions in cases sensitive information could thwart terrorism or prevent violence.
The Senate companion bill, sponsored by odd bipartisan bedfellows Ron Wyden, D-Oregon; Mike Lee, R-Utah; and Richard Durbin, D-Illinois, is expected to be considered soon.
While the Virginia General Assembly punted on its chance to extend protections to journalists, Congress took up the ball and is running with it. Voters should encourage their senators to support this bill and help ensure that a free press thrives across the nation.