Shield law only masks the real flaw

Guest Editorial
When it chose to secretly seize phone records and emails from more than a hundred journalists, the Justice Department was behaving in the way of some tinpot dictatorship.

Liberals and conservatives alike condemned Justice’s fishing expedition, and Congress is hurrying to pass a media shield law similar to one that stalled a few years ago.

The backlash also could, and probably should, cost Attorney General Eric Holder his job. If this were just another poor decision on his part, it might be rationalized, but the attorney general comes across as an indifferent guardian of the Bill of Rights. That is intolerable.

In a democracy, basic rights sometimes clash. This is inevitable. What happens, for instance, when a criminal suspect’s Fifth Amendment right to confront a witness conflicts with a reporter’s First Amendment right to protect a source?

What happens is a balancing test. Typically, a judge would compel the reporter to divulge the source only after every reasonable, alternative way of getting the information had failed.

In other words, the court would respect and protect both rights as vigorously as possible. It would make the tough choice only as a last resort. This is what the Justice Department failed to do when it spied on Associated Press and Fox News reporters. It went fishing with a net instead of a hook.

Michigan and 48 other states (Wyoming is the outlier) enshrine a balancing test via shield laws. Judges, lawyers, detectives and others in the legal system cannot snap their fingers and force reporters to become agents of the state.

There is no federal shield law. The 2007 Free Flow of Information Act passed a Democrat-led House, but a GOP-organized filibuster killed it in the Senate.

Only one Democrat — Harry Reid of Nevada — joined the Bush administration in opposing the legislation. Four Democratic senators, including Barack Obama of Illinois, abstained.

A federal shield law is fundamentally different from a state shield law. State courts rarely deal with issues of national security. Federal courts do.

Shield laws also are problematic. They demand a definition of who qualifies as a reporter.

This is perilous. There is a reason why journalists are not licensed: The founders feared a state-run press.

Whatever the merits of a federal shield law, Americans would be served even better by a Justice Department led by men and women who appreciate and cherish the Bill of Rights.