Like it or not, the Constitution’s First Amendment gives the media special protection in the American republic. That amendment says, “Congress shall make no law … abridging the freedom … of the press.”
With one of the recent presidential candidates unconstitutionally threatening to shut down media outlets or take away their (nonexistent) licenses when they say or do something he doesn’t like, it is not hard to imagine him in office trying to ferret out government whistleblowers by applying legal coercion to force members of the press to cough up their sources. In fact, this candidate, when he was president previously, did precisely that, as did his predecessor from the opposite party to an even greater extent.
Forty-nine states and the District of Columbia have laws or state court rulings that shield reporters from such government coercion. Despite the special protection of the media by the Constitution at the national level, no similar federal law exists to provide the same safeguard. Thus, federal Circuit Courts of Appeals rulings have had to give some stopgap protection.
Why is a federal shield law for reporters needed? If the government cannot keep its essential information under wraps, then the press should be free to publish it for public inspection. However, the government doesn’t see it that way, and it has plenty of coercive legal power to subpoena reporters of leaked information to divulge their sources so that any government leaker can be prosecuted.
And legally, if reporters gather or transmit vaguely defined “national defense information” from leakers or whistleblowers, the journalists can risk being prosecuted criminally through the Espionage Act of 1917; only tradition has circumscribed the prosecution of reporters under the law. Of course, the general lack of protection for reporters’ sources dissuades such federal whistleblowers from talking to reporters about wrongdoing or corruption in government. Even in a republic, the public should be aware that plenty of corruption and skulduggery exist in government.