Why a Media Shield Law Isn't Enough to Save Journalists

[Commentary] I’m all for a shield law to protect journalists and their sources from government prosecutors. I hope Congress passes one. But I don’t have lots of faith that the ideas under consideration in Congress or any law can protect journalists adequately.

This is one of those areas where custom carries more weight than statute, the custom being the general good sense of prosecutors not to go after reporters for their information. For the most part prosecutors—and by that I mean everyone from county attorneys on up—have refrained from going after reporters, including the notable and obvious exception of the Obama Justice Department. Yes, there are cases where prosecutors have gone subpoena-happy, from the BALCO steroids case to the Aurora shooting to the CIA leak case, where I was caught up in the maelstrom. But, generally, prosecutors don't pursue reporters even when they can. This unspoken compact began to become undone during the Bush administration, and, of course, it has unraveled during the Obama years as the national-security state has expanded. Inevitably, prosecutors have to seek a balance. In the case of James Rosen, even if you grant that the leak of North Korean nuclear-testing information was a huge deal, and you imagine that it may have been dependent on human intelligence in Pyongyang and you fear its revelation led to us having to roll up networks or even harm coming to sources, you can see the fervor with which DOJ, along with the CIA and the rest of the intelligence community, would want to go after such a leak. But from what we’ve heard about the case, it’s hard to see why you’d need to subpoena the reporters e-mails and phone records. The government already has extensive rights to look over the documents of employees with high security clearances. If you have their records, do you really need the Fox ones? Even if you do, is it worth it? For a long time, prosecutors answered the question “no”—not because they were saintly but because it was in their self-interest, and ours.