Attack on AP magnifies need for shield law

In May 2012, the U.S. Department of Justice secretly subpoenaed personal and work telephone records for several Associated Press reporters and editors, along with general AP office numbers in New York, Hartford, Conn.; Washington, D.C.; and for the main AP number in the U.S. House of Representatives press gallery.

A year later, in May 2013, the AP learned that federal agents had possession of these phone records.

In the week since the federal subpoena was publicly disclosed, the AP has already seen effects on its news gathering.

“Officials that would normally talk to us and people we talk to in the normal course of news gathering are already saying to us that they’re a little reluctant to talk to us,” AP chief executive Gary Pruitt said Sunday on Face the Nation. “They fear they will be monitored by the government.”

That is the crux of the threat when a government agency unilaterally determines what sources journalists can keep confidential and what the government can probe.

The chilling effect that Pruitt described has serious ramifications for the free flow of information in our democracy. Fewer U.S. news organizations are doing investigative reporting because of budget constraints. Fewer journalists are covering the federal or state governments.

The AP, of which The Billings Gazette is a member, is one of the remaining news organizations still doing investigative and national reporting with enough resources to hold the government accountable and to tell citizens what their government is doing.

Although Attorney General Eric Holder has defended the Justice Department in the AP subpoena case, the Obama administration has supported enacting a federal shield law that would help prevent a repeat of that heavy-handed incursion on freedom of the press. President Obama last week called for passage of a federal shield law.

Sen. Jon Tester, D-Mont., is a cosponsor of the Free Flow of Information Act of 2013, S.987. It was introduced in the U.S. Senate by Sens. Chuck Schumer, D-N.Y., and Lindsay Graham, R-S.C. A similar reporter shield bill, HR1962, was introduced in the House with bipartisan sponsorship.

Either bill would create, for the first time, a statutory reporter’s privilege that could be invoked when federal authorities seek information, including the identity of a source, from a reporter engaged in news gathering activities.

The proposed shield laws aren’t absolute. In most cases, journalists would have an opportunity to defend their position in court before the federal government or other entities could seize information or compel disclosure of confidential sources. But there would be exceptions, in certain criminal cases and in cases involving terrorism. Even then, the proposed laws would require the U.S. Justice Department to get approval from an independent federal judge.

At The Billings Gazette, journalists use anonymous sources sparingly and our policy requires that the editor be informed of the source’s name and be in a position to vouch for his or her credibility.

However, unnamed sources are routine in reports on the federal government. So few people are authorized to talk about anything, that those speaking often insist on anonymity because they weren’t authorized to speak. That’s how most Americans learn what their government is doing or not doing.

Referring to news of the secret AP subpoena, Tester sent a letter to Holder saying: “these actions represent a blatant violation of privacy, and directly interfere with the constitutionally protected rights of the press to do its job free from government intrusion or direction.”

We share the senator’s outrage and commend him for acting to prevent future unconstitutional government intrusions. We call on Sen. Max Baucus and Rep. Steve Daines to join as cosponsors of the Free Flow of Information Act of 2013.