The last media shield bill was thwarted when Wikileaks exposed thousands of pages of secret government documents, killing the political will to bring the legislation to a floor vote. Even before that, however, the Obama administration refused to support Schumer’s legislation unless it excluded reporters who publish leaks deemed to cause “significant harm” to national security.
Though the administration’s renewed interest in the media shield could signal regret over the AP scandal, the compromise bill may not have protected the AP from the DOJ’s subpoena because of this exception for national security leaks. However, Schumer argued the legislation would have made a difference:
In a statement, Mr. Schumer referred to the A.P. subpoena: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
It is not clear whether such a law would have changed the outcome of the subpoena to The A.P. But it might have reduced the chances that the Justice Department would have demanded the records in secret, without any advance notice to the news organization, and it may have allowed a judge to review whether the scope of the request was justified by the facts.
As the New York Times notes, the media shield compromise language would actually help the government pursue reporters to root out leaks of classified information — “Judges could not quash a subpoena through a balancing test if prosecutors could show that the information sought might help prevent a future terrorist attack or other acts likely to harm national security.”
The bill would, however, protect journalists from civil suits attempting to force them to give up sources or information. It would also require the information seekers to prove why their need trumps the need for unfettered media.