David Pozen, Just Security, October 21, 2913, argued that the federal shield law under consideration in the U.S. senate may not work to reporters’ advantage. He reasons that the Justice Department now has to endure public wrath for pursuing journalists trying to protect sources. Under a federal shield law, they can claim that in bringing journalists to task they are following the law. Journalists could still prevail if they won a high percentage of cases in court, but the courts tend to rule for the administration on national security.
Sophia Cope, Just Security, October 21, 2013, counters that federal judges now do not have a federal law to cite in ruling for reporters who wish to keep their sources confidential. The national security exemption to the shield law, if the Senate bill is passed, would be limited to preventing future harm. In the case of the James Risen, the New York Times reporter, the leak occurred 10 years ago so there is no future harm in forcing Risen’s testimony. The shield law would also prevent government agencies from obtaining reporter’s records and communications which seriously handicaps reporters seeking sources.