To any Department of Justice investigators who might have dumped my phone in an effort to figure out this week’s post topic, save yourself the trouble, it’s about the absence of a federal media shield law. One of the big stories in a week that couldn’t end soon enough for the Obama administration is the revelation that the DOJ obtained records of various Associated Press phone lines by subpoenas to the wire service’s phone provider.
As shameful and shocking that the DOJ did this, what is worse is that it wasn’t illegal. Although warrants are required for police to tap phones (to listen to conversations), no warrant is required to obtain the records of incoming and outgoing numbers for a phone line nor to put a trapping device (pen register) to catch those numbers. When you hear TV police detectives talk about “dumping” or “trapping” a suspect’s phone, this is usually what they mean, not putting a wiretap on it. The Supreme Court held in 1979′s Smith v. Maryland, 442 U.S. 735, that such practices are not considered searches and therefore not subject to the warrant requirement. The basic reasoning was that such information does not meet the Katz reasonable expectation of privacy standard because it is information that phone companies already have and is not related to the contents of calls (which is protected).
The First Amendment guarantees, among many other forms of expression, a free press. This is highly important to a democracy because the people must be informed (although viewers of Fox News and a few other entertainment providers waive that right quite regularly) and journalists must have the ability to do that. The free press protections apply mostly to publication. As the Supreme Court held in New York Times Co. v. United States, 403 U.S. 713 (1971), the infamous “Pentagon Papers” case, the government cannot censor or restrain news publication. A phenomenal quote from that decision:
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
Now more than ever–with the technology and mass media we have–the pen really is mightier than the sword. In recent months we have been inundated (through the media) of “Second Amendment solutions” and fighting “tyRanny!!$@%$!” with armed rebellion. A safer and more immediate way to change the government is through voting. A free press enables the populace to fully exercise that power.
While the media are armed with pens, they lack shields. Although the government cannot censor publication, it could require reporters to reveal sources. Many states, including Connecticut, have media shield laws. These laws do not provide absolute protection of news sources, but establish protocol that prosecuting and law enforcement authorities must follow–including providing notice and opportunity for argument to the news medium and requiring the seeker of the information to prove by–clear and convincing evidence in Connecticut courts–why such information must be disclosed. Our law is codified in Conn. Gen. Stat. 52-146t. The federal government and courts have no requirement. An egregious oversight for a government that was bound by the First Amendment since its ratification.
There was a proposal for a federal media shield law in 2007. It was passed by the Democratic House (only 21 representatives, including clown Darrell Issa, R-CA, voted against it) before it was filibustered by a bunch of bozos (Republicans) in the Senate. Illinois Sen. Barack Obama, who apparently cared about this subject in his younger and less vulnerable years, supported the bill. To some credit, the White House just renewed its support for a failed 2009 media shield bill. Congressmen and Senators, put your money where your mouths are and pass this bill.
Journalists’ sources need legal protection. If they suspect that their numbers and a conversations are being monitored, they won’t speak to journalists. If that happens, our news and our democracy will suffer.
DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299 is a law firm owned and operated by Attorney Christopher DeMatteo. To learn more about this and other topics visit DeMatteo Law LLC at his website New Haven Attorney