From 5/25/13

Given the aggressive behavior by the DOJ toward reporters and news organizations, mainly against FOX News, a lot of people are raising the subject of the “shield law” to protect reporters against government harassment.

I am a great believer in Jefferson’s famous quote: “…and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter…” Not because I admire today’s media; I deplore it and the reporters who are generally ignorant and lazy, and the editors who chase after ratings without any limits or professional standards remaining. However, the idea of freedom of speech is embedded in the existence of a free media, and this is why I am in favor of it.

It is quite easy, I think, to state with firmness that in all matters, other than those of national security, the media should be protected against government intervention, aggression, and persecution/prosecution. That is easy. I will note that the whistleblower law provides protections for the leakers already, so indeed the “leakees” (reporters) should be protected too.

But what about national security? There is a clear dichotomy here. On the one hand, we are all saying that those who leak are committing a crime, indeed in many cases of national security, it could amount to treason or espionage—pretty serious charges. So if this is the case, why are the “leakees” allowed to publish these things? If it is national security at stake, the law should be very clear: the reporter and the media outlets should not be allowed to publish it. It should be espionage and/or treason for them too.

Some may say that governments would abuse such a huge crack and drive the whole cart and horses of government scandals through it. So, first of all, what is defined as national security should be very limited and clearly damaging to serious, very serious, national security interests of the USA. The bar needs to be set very high. But the ultimate solution is for the courts to adjudicate it. Either before the leak occurs or after, but it cannot be that reporters and media outlets are immune from being punished for causing damage to national security. Why is shouting “fire” in a crowded room considered barred even under the first amendment, but disclosing information that may lead to deaths of people here or overseas is OK?

I know that in the world of free speech and democracy that we live in, this sounds harsh, but please explain the reverse logic to me. Why is it OK to put to death (treason is punished by death in serious cases) the leaker but let the leakees go scot-free without any punishment?