Protecting the First Amendment

Congress should pass the Free Flow of Information Act.

Serious efforts to pass shield laws protecting journalists from giving up confidential information or naming off-the-record sources to government officials have been in the making since the Washington Post brought down Richard Nixon. Thirty-six states currently have some measure of protection, but those state regulations remain largely ineffective with the absence of a federal shield law. And without a federal shield law, the First AmendmentâÄôs protections of freedom of speech and freedom of the press are grievously compromised. As Congress stalls on passing the Free Flow of Information Act âÄî which would grant reporters qualified immunity from federal subpoenas âÄî the doors to sensitive information remain locked, and reporters continue to suffer intimidation from federal authorities who are either too lazy to conduct their own investigations or too obtuse to properly weigh the value of their investigations versus the value of the First Amendment. During the Bush years, federal abuse of the First Amendment was particularly acute: At least 65 requests to subpoena journalists were approved by the U.S. attorney general, according to the ReporterâÄôs Committee for Freedom of the Press. Two versions of the shield law bill are making their way through Congress. The Senate version is more restricting in terms of granting reporters qualified immunities âÄî it doesn’t allow reporters to protect certain documents and records âÄî and the House version is more restricting in the definition of a journalist. Doubtful lawmakers should not fret about inflamed fears of whether national security would be compromised (the bill makes exceptions for that). And in negotiating between the two versions, Congress should err on the side of expanding First Amendment protections over extending the already overstretched reach of federal law enforcement.