Case shows need for federal shield law

Eve Burton

Sunday, May 26, 2013 | 2 a.m.

The U.S. Department of Justice’s unprecedented decision to gain information in secret from more than 20 separate telephone lines used by Associated Press reporters and editors strikes at the very core of our constitutional freedom.

There has long been a “social contract” between the press and the government so that in sensitive situations, the press and the government both do what is best for our nation. The essence of this “social contract” is based on trust. This month, we lost ground.

The government and the press both have important roles and responsibilities rooted in the U.S. Constitution, and we must coexist.

When the press has obtained sensitive information that the government legitimately believes will harm American lives, the media often reach agreement with the government, which may mean not publishing the information.

That happened here, in the matter at the heart of the government’s leak investigation from which the secret subpoena of AP records arose.

Last year, AP had the story on the foiled Yemen-based terrorist plot. The government sought AP’s agreement to delay publication. The press listened, respected the request and agreed. AP acted responsibly on the basis of the “social contract.”

This tradition developed between the press and the executive branch in recognition by both that the country benefits when these institutions are strong. But this tradition is predicated on our collective sensitivity when there is a potential for intrusion on the other’s most fundamental interests.

More than 40 states and the District of Columbia have statutes on the books to protect reporters and their sources, but we still lack a federal shield law.

The government’s secret action against the AP is a disappointing reminder that we cannot rely on our government to police itself and that there is a critical need to guard against such intrusion. We need a federal shield law that at a minimum provides notice to journalists when their information is sought, provides a mechanism for independent judicial oversight and review, and strongly protects our journalists and their sources so that the public’s right to know is not compromised.

The Justice Department has agreed to support a federal shield law. This is a positive development. The last time Congress considered such a law, it passed the full House and the Senate Judiciary Committee with strong support before it stalled.

That law would have prevented the unilateral action the Justice Department employed against the AP.

In the spirit of repairing the “social contract,” the Justice Department should make good on Attorney General Eric Holder’s public statements that he supports a federal shield law.

Any shield law must include a requirement that an independent federal judge weigh the competing interests of the press and the government to determine what best serves the public before ordering disclosure. This will allow the press to have greater confidence that its government is not unnecessarily intruding upon its confidential source relationships and its ability to inform the public.

Whether the issue is national security, criminal rights or press freedoms, it’s the role of the judiciary under our Constitution to determine the outcome when the interests of the government and the press collide. For the good of the country, we need a strong shield law supported by the Justice Department and the attorney general.

Eve Burton is general counsel and senior vice president of Hearst Corp.