The Press, National Security, and Civil Discourse

Abstract

The Constitution expressly provides protection for the freedom of the press. Yet there is one area in which the press is not so free: the freedom to refuse disclosing confidential sources when subpoenaed by the federal government. Currently, there is no federal reporter’s privilege. The Supreme Court has held the First Amendment provides no such protection, and repeated congressional attempts to codify a reporter’s privilege in a federal shield law have failed. Arguments against a shield law include national security concerns and the struggle to precisely define “journalist.” Such concerns were evident in the most recently proposed shield law, the Free Flow of Information Act of 2017. This Comment advocates in favor of passing a federal shield law. Specifically, this Comment analyzes the Free Flow of Information Act of 2017 against the backdrop of a post-9/11 America where “fake news” runs rampant. Though far from perfect, the proposed law was a step toward balancing national security concerns with press freedom. Legislators can and should strike an effective balance between these two tensions by accurately defining terms like “national security” and “properly classified” to prevent government overreach. Finally, this Comment argues that a federal shield law is necessary to combat the recent national security concerns raised by “fake news” and thereby reaffirm media credibility.