Friday, February 13, 2009

Protect the Source

While it appears that the only thing Congress is concerning itself with is the stimulus, Justin Miller, writing for The Atlantic's new Politics blog, gives some details on the House picking up some legislation I feel is rather important: the Free Flow of Information Act -- protection for journalists and their sources.

The whole reason the right to a free press is enshrined in the 1st Amendment is so that reporters can reveal the inner workings of government, corporations and other bastions of power, and expose any hidden cancers within them, without the fear of reprisal. How can they do this necessary work if those with knowledge within these institutions are unwilling to step forward because they might be exposed? While we do have whistleblower protection laws, nothing has extended to journalists themselves.

Per Justin's summary, there could be some possible issues, namely whether bloggers are covered (see the definition of "journalist"), and that the government only need show a preponderance of evidence to have the source or documents revealed. The preponderance test jumps out at me.

*I apologize in advance for the legal mubo-jumbo to follow. I am a lawyer after all.*

When laws are scrutinized to see if they infringe on certain rights, depending on what is being infringed, different tests are utilized. The least amount of scrutiny is whether the government has a rational basis in enacting the law (e.g. giving tickets for running red lights). The middle level is known as intermediate scrutiny and requires that a law relate to important government interests (e.g. requiring separate men's and women's bathrooms in public facilities). Lastly, there is strict scrutiny, which requires that a law must fail unless the government has a "compelling government interest." This is invoked when a right granted in the Constitution is potentially infringed (e.g. Zoroastrianists can't practice their religion). Requiring a "preponderance" of the evidence is equal to the rational basis test. The requirement of a jury to find guilt "beyond a shadow of a doubt" is equal to strict scrutiny.

While anonymous source cases don't involve the direct restriction of a free press, which would clearly invoke strict scrutiny, I feel laws effecting the ability of the press to conduct it's job and fully realize it's 1st Amendment right should be subjected to more scrutiny than what is essentially a rational basis. An intermediate scrutiny seems appropriate here. Regardless, this law, in my humble opinion, is the right way to go as the media and news coverage explodes. Thoughts?

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