Thoughts on The Free Flow of Information Act - Part I

In an opinion piece in USA Today, Attorney General Michael Mukasey sounds off against the Free Flow of Information Act presently being debated in Congress. If enacted into law, the measure would protect members of the press under certain circumstances from being compelled to identify  informants or the information they traded on a promise of confidentiality. Mukasey argues that the bill would put reporters "above the law" and "impede investigations of serious crimes," including terrorism and other threats to national security. Besides, he says, the most notable news stories, think Pentagon Papers, Watergate break-in, Enron scandal, all broke with the help of confidential informants whose identity was not protected by a statutory reporter's shield. And so, the argument goes, a statutory shield will unnecessarily intrude on legitimate law enforcement objectives without delivering any countervailing benefits to members of the press or the public that benefits from their work.

Setting aside for a moment the details of the proposed law, consider Mukasey's threshold argument: that the press has functioned fine without a statutory shield so why enact one now?  History is certainly rich with confidential informants who've accepted the risk of of possible disclosure, but I think Mukasey overstates the case.  Whatever incentive confidential informants may have had to come forward in the past, can we really say that the press, and through it the public at large, wouldn't benefit from added protection?

In Branzburg v. Hayes, the Supreme Court declined to grant the press an unqualified right of confidentiality under the First Amendment.  But the press still flourished, as did the use of confidential informants, in part because the decision left room for recognizing a qualified privilege on a case by case basis that takes into account the risks and benefits present in each independent circumstance. Indeed, most jurisdictions follow this approach, but the standards vary, and what is protected in one jurisdiction may not be protected in another. A federal shield statute would at least bring some consistency in the law that in turn may encourage otherwise wary informants to come forward with valuable information the public would want to know.

Moreover, its true that Pentagon, Watergate and Enron insiders were willing to talk without guaranteed protection, as were informants who leaked the Bush Administration's domestic spying, torture and rendition programs - matters Mukasey neglects to mention in his op-ed. But could we ever quantify (or qualify) how many episodes of government or corporate wrongdoing have yet to be discovered because those in the know are unwilling to talk without adequate protection?  To borrow the words of another Administration insider, there are things "we don't know we don't know."  And its likely to remain that way until a federal shield becomes law.

Mukasey's additional concern that the Free Flow of Information Act would undermine legitimate law enforcement investigations also deserves a closer look.  More on that tomorrow . . .

-Kathleen A. Bergin