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It is commonly said in the practice of law that “bad facts make bad law.” Sometimes a far-reaching court decision, affecting a broad swath of cases for years to come, results from one bad set of circumstances.
But sometimes, bad facts can make for good law. And in this case, to no surprise, the party of small government has led the way.
Readers will recall the 2003 Robert Novak column referring to Valerie Plame, wife of virulent George W. Bush critic Joseph Wilson, as “a CIA operative.” A media frenzy ensued, seeking vindication for this allegedly outrageous leak—right up until prosecutor Patrick Fitzgerald decided that the only way to find the source of the leak was to subpoena reporters for source information.
At that point, the media quickly fell out of love with Fitzgerald, and Congress began to entertain the idea of a federal media shield law.
Leading the charge were two Republican members of Indiana’s congressional delegation, both champions of small government and protection of the individual from government excess.
In 2005, then-congressman Mike Pence introduced The Free Flow of Information Act in the House; and then-Sen. Dick Lugar introduced a nearly identical bill in the Senate. Both spoke publicly and eloquently at the time about the critical role of an unrestrained media in a free society.
The bill didn’t pass. But the two Indiana champions never gave up, continuing as primary sponsors of the legislation in successive Congresses in 2007, 2009 and 2011.
Enter the Obama administration, which has conducted more leak investigations than all prior administrations combined. Many of these have included subpoenas involving reporters; but the media have remained silent on the subject until recently, when it was revealed that the Justice Department last year secretly issued an exceedingly broad subpoena for the call records of 20 Associated Press telephones—including home and cell phones, as well as records of a telephone in the Capitol used by many reporters for purposes unrelated to national security.
The government’s heavy-handed approach will likely chill the relationship between reporters and their sources, who will now be afraid to come forward if they witness wrongdoing, for fear of reprisal.
No one questions the government’s interest in protecting national security by investigating leaks of sensitive information, but a careful balance must be struck between that interest and the need for an unrestrained media to protect the public from government overreach.
That’s why Lugar and Pence continued to push for the bill in four successive Congresses. These champions left the Congress this year without seeing their efforts rewarded.
Now, in the wake of the outrage surrounding the AP subpoenas, the act is being reintroduced. I predict it will pass the normally gridlocked Senate and House in record time and by overwhelming majorities. There’s nothing like executive branch overreach to spur members of both parties to action.
Some have questioned whether the act would have prevented the secret, overbroad AP subpoenas. I believe it would have; it requires prosecutors to satisfy a court that the subpoenas should issue without notice and hearing, that the harm to national security outweighs the public interest in newsgathering, and that the scope of the subpoenas is sufficiently narrow to achieve their purpose without extending to protected areas.
Now, while both well-respected former legislators have moved on to other pursuits, the legislation they sponsored is likely to be enacted. They have left a strong legacy for all believers in freedom, and we owe both a debt of gratitude.•
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Daniels, a partner at Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments on this column to ibjedit@ibj.com.
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