Las Vegas Review-Journal — 'A license to do good'

• By: ASNE staff
• On: 05/08/2008 11:37:24
• In: Shield law editorials

Las Vegas Review-Journal
April 20, 2008

Joining Democratic presidential rivals Hillary Clinton and Barack Obama, GOP presidential heir apparent Sen. John McCain this week issued his own unexpected endorsement of Rep. Mike Pence's proposed federal shield law -- an endorsement that carries all the more weight not just because of the likelihood Sen. McCain will be the next president, but also because of his known "hard line" on national security.

Sen. McCain announced at the annual meeting of The Associated Press on Monday that, though he had "a hard time deciding," he "narrowly" decided to endorse shield legislation because, while it could be a "license to do harm," it also constitutes "a license to do good, to disclose injustice and unlawfulness and inequities, and to encourage their swift correction."

Many states offer immunity from prosecution to journalists who can acquire information about government wrongdoing only by promising confidentiality to their whistle-blowing sources. But until recently, attempts to provide such protection on the federal level were going nowhere.

Rep. Pence, R-Ind., has been pushing his current federal shield law for three years. It passed the House overwhelmingly in October, and a shield bill has also cleared the Senate Judiciary Committee. But the proposal has been kept off the Senate floor by vigorous opposition from Senate Republican Whip Jon Kyl, Sen. McCain's junior colleague from Arizona.

"Federal shield legislation became more urgent March 7, when drastic financial penalties were imposed on a reporter ordered to name all of her sources for a set of stories," reports syndicated columnist Robert D. Novak. "Opposition to relief by Bush and the Senate Republican leadership raises questions as to whether the Grand Old Party stands for limited government or, in its pursuit of global terrorism, disdain for constitutional liberties."

Although no shield law had reached the floor in Congress for 30 years, "the climate was changed by pressure on journalists from special counsel Patrick Fitzgerald in the CIA leak case, including an 85-day stay in prison for New York Times reporter Judith Miller," Mr. Novak recalls.

The most coherent criticism of a federal shield law -- voiced this week by Kevin Williamson at the National Review -- is that enforcement would require "a federal determination of who counts as a legal journalist and who doesn't. This amounts to having the federal government license journalists, which is undesirable on many levels."

Indeed, any such law would have to interpret "journalist" broadly based on the work undertaken; any attempt by the government to turn "journalist" into a licensed profession must be resisted from the outset. But this is not a fatal objection, especially when the status quo faces legitimate reporters with prison and bankruptcy for no worse "offense" than refusing to participate in the identification and silencing of whistleblowers -- a cooperation that would promptly shut down the public's main access to accurate information on government abuse and excess.

Sen. McCain's past "flexibility" on whittling down the First Amendment -- specifically, in the name of "campaign finance reform" -- has been a subject of concern. But his decision to support legitimate investigative journalism here is most welcome.