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We need more than the First Amendment to protect journalists

The news on Monday that three Al-Jazeera journalists were convicted and sentenced in Egypt to seven years in prison on terrorism-related charges has sparked international outrage. 

The ruling is a huge blow to the free press and seen widely as a political move against unfriendly coverage. 

As America and the rest of the civilized world look at the outcome in Cairo with horror and disdain, it's a good opportunity to look at our own press freedom laws. The United States' lack of protections for journalists might not be as extreme as Egypt's, but something similar could very well to happen to one of our journalists domestically.

A reporter-source confidentiality privilege should flow naturally from the First Amendment--but so long as the courts refuse to apply the First Amendment to protect journalists, the press will remain vulnerable to harassment.

Just weeks ago, a pair of Supreme Court actions highlighted the government’s power to harass and even imprison reporters, simply for doing their job and abiding by the basic code of journalistic ethics. 

The Supreme Court upheld a ruling protecting one reporter from the threat of subpoena and jail time, but just days later declined to hear the appeal of another reporter facing a similar crisis. 

The lack of clarity and consistency from the court demonstrates the glaring need for a federal shield law that protects all reporters from the threats of harassment and subpoena.

New York Times reporter James Risen faces jail time after the Supreme Court declined to hear his appeal of a federal subpoena that orders him to reveal his confidential sources or be held in contempt of court. 

Risen was subpoenaed by the Justice Department after writing a book on a CIA plot to disrupt Iran’s nuclear program, and he refuses to violate the fundamental ethics of his profession by betraying the confidentiality of his source.

Risen’s predicament is hardly unique. Fox News reporter Jana Winter faced the same threat of subpoena and jail time over her reporting on the 2012 Colorado movie theater shooting, which dissipated only this June, when the Supreme Court declined to hear the appeal of lawyers seeking to force Winter to give up her sources.

The judiciary’s refusal to set a clear precedent and consistently defend press freedom in these cases is deeply troubling, and could discourage journalists from pursuing the type of aggressive investigative reporting that is vital to preserve a free society.

The First Amendment prevents Congress from making any law abridging the freedom of the press, but it’s becoming clear that the judiciary will not consistently apply the amendment to offer journalists legal protections. The relationship between a reporter and his or her source is every bit as sacrosanct as doctor-patient and attorney-client relationships, both of which are protected in court. 

A reporter-source confidentiality privilege should flow naturally from the First Amendment--but so long as the courts refuse to apply the First Amendment to protect journalists, the press will remain vulnerable to harassment.

A federal media shield law, similar to laws that are on the books in 48 states and the District of Columbia, would offer clearly defined protections from subpoena to reporters like Winter and Risen, keeping their fate out of the hands of an inconsistent Supreme Court and strengthening their First Amendment rights as members of the free press. This legislation should protect all those who engage in the actions of journalism with the intent to publish from undue government harassment, and enshrine the confidential relationship between a reporter and their source.

The House recently passed an appropriations bill prohibiting the Justice Department from allocating funds to harass reporters like Risen, but Congress should consider a more comprehensive shield law. 

It’s critical that lawmakers recognize the evolving state of journalism, which can now be practiced outside the traditional confines of newspapers, TV networks, and other print and broadcast outlets. The digitization of media has democratized journalism, and opened the field up to independent publishers, part-time reporters, and others who do not fit the traditional model of a “journalist.”

The First Amendment theoretically protects the Fourth Estate, but the Supreme Court’s inconsistent application of the amendment is leaving reporters at risk and weakening the press’ power to hold government accountable. 

The time has never been better for Congress to step in and strengthen the First Amendment to protect all those who seek and report the truth.

Jason Stverak is president of the Franklin Center for Government & Public Integrity.