Paying attention to the shield law’s critics

[Commentary] When a Senate committee approved the “Free Flow of Information Act of 2013,” applause was heard from scores of media shield law supporters, from the Newspaper Association of America to the Reporters Committee for Freedom of the Press. To them, the news came as a relief after revelations the feds had secretly seized Associated Press phone records and labeled a Fox News reporter a criminal “co-conspirator” as an excuse to get his emails. So perhaps it isn’t surprising that the AP story on the bill and newspaper coverage generally was unburdened by complexity: Long-overdue shield law advances; journalists to protect confidential sources and information. Yet magazine websites told a different story, one of a flawed law with holes that worry “even some supporters.” This raises a question: Shouldn’t the critics get more attention in the mainstream coverage?

The shield law opponents object to Congress making laws about the press when the First Amendment begins with the words “Congress shall make no law.” They worry we are trading a large constitutional shield for a small legislative one. Yet the same federal courts that have pushed back First Amendment protections for journalists will, under the shield law, be asked to make important decisions about who qualifies for protection. The very idea of Congress and judges defining the word “journalist” is controversial. What the law does not cover are organizations, like WikiLeaks, that publish raw government secrets directly to the Web. But there’s no guarantee the definition won’t change.

[Newton is senior adviser to the president at the John S. and James L. Knight Foundation]