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Why Shield Laws Don't Always Help Media's Position


Later today, the attorney general will meet with some media industry officials. This get-together comes after wave of protest over the Department of Justice's subpoenas for Associated Press phone records and a search record that named a Fox News reporter as a co-conspirator. Eric Holder says he wants to improve media relations and is open to changes, including asking Congress to pass a new media shield law.

But long-time prosecutors warn reporters that they should be careful what they wish for, as NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: Justice Department lawyers say despite the media outcry, obtaining a subpoena for reporter phone records remains awfully rare. And because the longstanding DOJ guidelines involve so much hassle, former prosecutor Peter Zeidenberg says the government often doesn't even bother to try.

PETER ZEIDENBERG: It takes an extremely long time, and there's a lot of pushback. So to think that this is a rubber stamp, it couldn't be further from the truth.

JOHNSON: Zeidenberg helped investigate the leak that identified Valerie Plame as a CIA operative when George W. Bush was president. Back then, a federal appeals court ruled that prosecutors were within their rights and Supreme Court precedent to pursue the leaker by compelling reporters to turn over their notes and testify. He says reporters today seem to forget that history, as well as other cases that go back even before Watergate four decades ago.

ZEIDENBERG: Reporters seem to be very sensitive about investigations that affect them, but they don't seem very mindful of the fact that the law applies to them.

JOHNSON: No one can remember a time when a reporter was actually prosecuted for publishing information. At the same time, the CIA, the national security agency and members of Congress have been pushing for more criminal cases against government officials who help reporters by leaking classified information to them. Former deputy attorney general Jamie Gorelick.

JAMIE GORELICK: The intelligence community has been nothing short of apoplectic about leaks, particularly a leak of operational information which destroys the utility of an asset, a spy, an actor, a mole on the ground.

JOHNSON: And that puts the Justice Department in a squeeze, says Matthew Miller, a former chief spokesman for Attorney General Eric Holder.

MATTHEW MILLER: Right now, the tension is resolved by a sort of detente, where prosecutors have all of the power of the courts and all the power of subpoenas, but they rarely use it because reporters have all the power of the pen and the ability to inflict mass controversy on anyone who comes after them.

JOHNSON: But under a media shield law, the ultimate authority would go to federal judges who would be neutral arbiters and largely above the fray. Ironically, that could lead to more aggressive tactics against reporters. Peter Zeidenberg.

ZEIDENBERG: I think judges may feel much more insulated from the public outcry. They're not going to be badgered at press conferences about why they approved a search warrant or a subpoena, so that, in fact, it may be much easier for the department to get what they want by going through a judge.

JOHNSON: Instead of the uniform set of guidelines that prosecutors have now, different federal judges could issue rulings that diverge and send different signals, complicating the situation for reporters in different parts of the country. Former Justice Department spokesman Matt Miller says something has to give.

MILLER: The ultimate solution is a media shield law, but that requires congressional action and that's, of course, unpredictable. But in the absence of that, we'll certainly see a tightening and a reform of DOJ's internal rules.

JOHNSON: The Justice Department says those changes won't come right away. The attorney general plans to meet with First Amendment advocates and the intelligence community before any overhaul of the reporter guidelines. Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.