“The Constitution of the United States reads in part that Congress shall make no law abridging freedom of the press. This freedom represents a bedrock of our democracy by ensuring the free flow of information to the public. But, sadly, this freedom is under attack.”
Those were the words of a Republican congressman from Indiana, spoken on the House floor on March 14, 2006, proposing federal legislation to protect journalists, or a media shield.
But 11 years later, Mike Pence’s office has not responded to queries first made in February as to whether the now-vice president still supported his proposal.
The Pence legislation narrowed somewhat over time. A later 2011 version, for instance, included an exemption that would require disclosure of information that could reveal a journalist’s source in cases where trade secrets were disclosed.
That bill also said federal courts could seek to compel disclosure in cases where a leak of classified information “has caused or will cause significant and articulable harm to the national security.”
Pence had introduced an earlier version in 2005. He said at the time he brought forward the measure in response to the jailing of New York Times reporter Judith Miller after she refused to testify before a grand jury that was looking into the leaking of Valerie Plame’s identity as a CIA officer.
The context for this, and how it relates to Pence, comes in the form of the Trump administration’s avowed quest to clamp down on leaks to the media. Attorney General Jeff Sessions and Director of National Intelligence Dan Coats said Friday that they backed President Donald Trump’s call to crack down on leaks of sensitive information.
“This includes leaks to both the media and, in some cases, even unauthorized disclosures to our foreign adversaries. Referrals for investigations of classified leaks to the Department of Justice from our intelligence agencies have exploded,” Sessions said.
Unlike Pence, Sessions has a long track record of opposing congressional efforts to protect journalists from being compelled to reveal their sources.
The Senate Judiciary Committee took up a version of Pence’s Free Flow of Information Act in 2009. Sessions offered and supported a series of amendments that would have weakened the bill’s protections.
Sessions was also one of five senators (four of them Republicans) who voted against sending the shield law to the Senate floor. It did not advance to the point of becoming law.
The Obama administration tried to revive the legislation in 2013, and New York Sen. Charles E. Schumer, the chamber’s current minority leader and a longtime backer of the effort, reintroduced an updated version and sought to advance it.
During that process, senators on the Judiciary Committee reached a bipartisan agreement on what would constitute a “journalist” for the purposes of legal protections of the shield.
Senate Majority Whip John Cornyn, a senior Judiciary member, was among the critics of the effort in 2013 and 2014. The Texas Republican said the federal government should not be attempting to regulate who qualifies as a working journalist, at all.
Cornyn was most direct in an interview with far-right news site Breitbart News.
“If you’re a blogger they might not cover you, but if you work for the New York Times they might. Given the changes in the way we get information and the way we consume news, that really smacks to me in essence of government licensing who’s an official ‘journalist’ for the purposes of a shield law and who’s not,” he said. “If there is one thing I can glean from the First Amendment, it is that government should not be in the business of licensing the news media.”
The current attorney general was also among the skeptics.
Sessions, as a a Republican senator from Alabama, did not like the idea of federal judges having authority to decide whether leaks were national security threats.
“Judges should not be expected to classify information. They’re not capable of deciding what should be kept classified and what should not,” Sessions said during the 2013 debate. “In many cases, the inability to identify sources of leaked information will guarantee the leaker will be able to violate the law with impunity and get off scot-free. That’s an absolute fact.”
Deputy Attorney General Rod Rosenstein discussed the emphasis on leak investigations during a Sunday appearance on Fox News.
“We’ve seen an increase in the number of leaks and we’re going to respond appropriately and try to establish an effective deterrent. Criminal prosecution isn’t the only way to prevent leaks, but it’s an important part of the solution,” he said.
But Rosenstein said reporters would not generally be the targets, adding that DOJ policy from the Obama administration often requiring the attorney general to approve efforts to compel testimony from reporters has not yet changed.
But that could yet change, Rosenstein said.
“We’re going to take a fresh look at that, and we’ve gotten feedback from our career prosecutors and agents that some of the procedural hurdles are delaying their investigation,” Rosenstein told Fox News. “So, I think it’s important for us to take a fresh look at it and evaluate whether or not there are any improvements that should be made.”
Schumer and his regular Republican partner on the shield legislation, Sen. Lindsey Graham of South Carolina, have not yet made a real push for the bill this year, but the combination of criticism of the media from Trump and the announcements by Sessions and Rosenstein might change the calculations when senators return.