If the news media were ever as smitten with Barack Obama as many conservative critics say they are, the president has been doing his best to help them get over it.
His Justice Department subpoenaed a wealth of phone records from The Associated Press in a leak investigation. The Reporters Committee for Freedom of the Press joined with 51 news organizations, including Tribune Co., to denounce this "overreaching dragnet" and demand "that any similar actions in the future be handled with greater consideration of the news media's First Amendment rights."
Even more alarming was the discovery that the FBI accused a Fox News reporter of committing a crime by disclosing secret information. The FBI got a search warrant that allowed it to read the private emails of reporter James Rosen, who in 2009 reported that North Korea was likely to react to a condemnatory United Nations resolution by carrying out a nuclear test. The warrant application suggested Rosen could be indicted under the Espionage Act — which is designed to catch spies and has never been used against a reporter. A Fox News executive correctly labeled the threat "downright chilling."
By getting the call records of more than 20 phone lines used by some 100 AP journalists, the government gained a vast amount of information about what the AP was doing and whom it was interviewing. That revelation must be causing a lot of reliable sources to lay awake nights wondering if they'll be caught and fired — not for jeopardizing national security but for sharing important facts that are simply embarrassing to someone in the government. The Rosen example is even worse, since it raises the possibility he'll be indicted and imprisoned.
Amid all this, the president tossed the press a bone by endorsing a proposal to shield reporters from prosecutorial inquiries. The Free Flow of Information Act, sponsored by Sen. Charles Schumer, D-N.Y., would establish new federal rules to protect journalists while obliging law enforcement to get judicial approval for these seizures. It would emulate provisions in 49 states.
Obama had come out for this sort of law as a candidate five years ago. But the bill died early in his first term after the website Wikileaks published hundreds of thousands of secret documents about the Iraq war. The climate in Washington turned against protecting leakers. Suddenly the mood is more receptive.
A federal press shield law is long overdue. It would serve to facilitate disclosures that are critical to public understanding, while assuring journalists a sphere of freedom to do their jobs.
But Obama's endorsement is no reason to celebrate. It's the equivalent of a guy sending roses to his girlfriend after he stole tulips from her garden. It doesn't undo the damage. And it wouldn't necessarily protect journalists the next time an administration gets the urge to overreach.
The bill in its 2009 version would compel prosecutors to exhaust every other possible way of getting the information before they could impose on journalists. The government's need for the items would be balanced against "the public interest in gathering news." And a judge would have to approve such requests.
In the AP case, the Los Angeles Times reported that the investigation involved a leak that compromised "an exceedingly rare and valuable espionage achievement: an informant who had earned the trust of hardened terrorists, according to U.S. officials." Attorney General Eric Holder said the leak "put the American people at risk." The department said it completed more than 550 interviews and looked at tens of thousands of documents before going after the journalists' phone records.
Given these circumstances, a court might have pre-approved this search. But it would be far better to require prosecutors to convince a federal judge of the need. Giving them complete discretion invites abuse — and threatens to shut off sources of information vital to the citizenry. Threatening to prosecute a reporter over a leak is even more dangerous, though, and this sort of statute would be no help.
Obama's Justice Department has dramatized the danger of not having a shield law, but also the danger of having an administration that forgets the role of a free press. The president is not the solution here. He's a big part of the problem.
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