Governments and news media will always be in conflict. That's the nature of the relationship. The conflict may not be personal or constant or even bitter, but it will always exist.
The Founders who wrote our Constitution understood that — they'd seen what happened when the crown controlled the press-- and they wanted to prevent that.
That's why freedom of the press is included in the First Amendment. It is a first principle of a vibrant and enduring democracy, no matter how inconvenient and unpleasant the results may sometimes be.
That's why shield laws are necessary and why we need a strong federal law. As the name suggests, these laws are designed to shield journalists from government efforts to force them to reveal confidential sources and information.
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The first shield law was passed in Maryland in 1896 and now most states, including Kentucky, have shield laws but getting one passed at the federal level has remained a challenge.
With each media-government crisis — such as the Nixon enemies list, Iran-Contra, Valerie Plame/Judith Miller — focus is again placed on attempts to pass a shield law.
The current push has gained steam since the news last week that the Justice Department had secretly obtained two months of telephone records of over 100 Associated Press reporters and editors, including work and personal phones.
This was done in an apparent effort to find the source of a leak that resulted in a story in May, 2012 about a CIA operation that stopped a terror attack in Yemen on the anniversary of the death of Osama bin Laden.
Kentucky's Sen. Mitch McConnell, in a rare expression of sympathy with the Obama administration, endorsed the Justice Department's actions, saying "this is an investigation that needs to happen because national security leaks, of course, can get our agents overseas killed."
Almost no one endorses a blanket shield that would protect every journalist in every situation, but it's hard to see how this probe could pass muster.
The AP acted responsibly and respected national security concerns before publishing the information. At the request of the government, the AP had delayed publishing the Yemen story until officials from two agencies said the threat was over.
But the larger issue is that the probe itself was simply too big, too secret, too long. Now, the Justice Department has seen records of dozens of reporters and hundreds of sources most certainly unrelated to the leak that was investigated.
This has a chilling effect on the media's ability to collect information. It's a pre-emptive strike that makes people afraid to talk to reporters for fear someone in a huge government aparatus is looking over their shoulder. And that makes it hard for the media to gather news about our government and share it with citizens.
A shield law that failed passage in 2009 has been reintroduced in both the Senate and the House. Under it, a government agency, in order to get a subpoena for media records and information, would have to make the case to a federal judge that the public interest is compelling and that all other means have been exhausted to obtain the information.
In the AP case, the subpoenas were approved within the Justice Department, reportedly by a deputy attorney general.
The nature of power is to consolidate and increase itself, and one way that's done is by controlling information. The Founding Fathers understood this and devised a system that would limit and separate power so that no one individual or institution could control too much.
The First Amendment protects the media for just this reason. We need a federal shield law.