We Donít Need No Stinking Badges
The Obama scandals and the case against a media shield law.

The American Spectator, July/August 2013

It was an appeal to his political base from a Democratic president mired in scandal. "Journalists should not be at legal risk for doing their jobs," Barack Obama said in a May 23 speech at the National Defense University. "And that's why I've called on Congress to pass a media shield law to guard against government overreach."

The president added that "I've raised these issues with the attorney general, who shares my concerns." That was rich. The next day it was revealed that Eric Holder had personally signed off on the decision to seek a search warrant for the personal emails of Fox News reporter James Rosen. In 2012, Holder's department also subpoenaed phone logs for 20 phone numbers, including personal ones, of Associated Press reporters as part of a national security leak investigation. (Holder told Congress he had recused himself from that decision.)

But it would be a mistake for Congress to respond to the Obama overreaches by expanding the power of the press. To understand why, consider how the mainstream media are themselves implicated in those scandals.

The Benghazi scandal began with an operation to spin the media with false propaganda, delivered by UN Ambassador Susan Rice, that characterized the attack that killed Ambassador Chris Stevens and three other Americans as some sort of spontaneous riot. The purpose was to deceive voters by minimizing a major terrorist attack in the weeks before Obama would face re-election. The operation largely succeeded because mainstream journalists were eager to be spun by this White House.

At this writing no evidence has emerged of direct White House involvement in the Internal Revenue Service's improper targeting of conservative groups. But even if the IRS acted without explicit orders from Obama or Valerie Jarrett, the president and his re-election aides conducted a campaign of vilification against the right. As my colleague Kim Strassel has documented, they singled out by name Republican donors and conservative groups that soon became the targets of audits and other federal investigations. Democratic senators and so-called good-government groups like Democracy 21 also egged on the IRS with letters demanding crackdowns on conservatives.

The media played an important role in this campaign as well, demonizing the Tea Party and other conservative groups as racist, extremist, and prone to violence. The worst offender was the New York Times, whose editorial board went so far as to blame conservatives for the January 2011 shooting of Rep. Gabrielle Giffords--after it was known that the assailant had no discernible political motive (see "A Week in the Death of the New York Times," TAS, March 2011).

The Times cheered the IRS persecution of conservative groups, too. In March 2012 the paper editorialized that "taxpayers should be encouraged" by the fact that "Tea Party supporters claim they are being politically harassed with extensive I.R.S. questionnaires":

The service properly contends that it must ensure that these groups are "primarily" engaged in social welfare, not political campaigning, to merit tax exemption under section 501(c)(4) of the tax code.

Such I.R.S. inquiries are long overdue and should be applied across the board to the growing number of organizations, allied with the major political parties, that are also ludicrously posing as "social welfare" groups. . . .

All these groups should be operating as political organizations required to disclose their donors under the law.

True, the Times called for evenhanded enforcement and cited a liberal group (Priorities USA) and an ostensibly non-ideological one (Americans Elect) it also wanted the IRS to investigate. But when the inspector general's report revealed that the IRS had in fact systematically targeted conservatives, the Times, in a May 14 editorial, said only that it was a "serious mistake."

It was far worse than that. At best it was a gross violation of the First Amendment, which prohibits government agencies from engaging in viewpoint discrimination when applying regulations that affect speech. At worst, it was an effort to steal the 2012 election for Obama--and even if that was not the intent, it might have been the effect. No one can know how the campaign would have gone had the IRS not chilled the speech of the political movement that produced the Republican landslide of 2010.

The Justice Department's aggressive surveillance of the AP and Fox News does not appear to have contravened any law. But it did violate the traditions, embodied in departmental guidelines, that for decades have governed relations between federal law-enforcement agencies and the press. Normally when an investigation leads to a news organization, the Justice Department informs the organization, tailors its requests for information narrowly, and seeks judicial review if the organization won't agree to cooperate.

Why didn't that happen here? A reasonable surmise is because this administration does not respect the press. It certainly doesn't respect Fox News, which it sees as a political and ideological antagonist. It doesn't respect the AP and other mainstream outlets for the opposite reason: because their sympathy to the administration has led them to abandon their partisan neutrality and skepticism of power. A wag remarked that in the Obama era, journalists have become lapdogs rather than watchdogs. It's closer to the truth to say they've still been acting like watchdogs but have mistaken the president for their master.

Liberal media bias is an old complaint, but the Obama presidency has given it a new and dangerous form. Never has the prevailing slant of the American media been so closely aligned with the ideological aims and political interests of the party in power in Washington. The media remain free and independent, or you would not be reading this column. But to a large extent they have functioned for the past few years as if they were under state control.

That's why a federal shield law is such a bad idea. Such a law would have to apply only to real journalists, or else every criminal enterprise would be able to elude law-enforcement investigations by publishing a newsletter or blog and claiming it was engaged in journalism. But a law that required the government to distinguish between "real" journalists and fake ones would effectively establish a licensing system for the media. Could the government be counted on to establish and apply a system for regulating the media without engaging in political or ideological favoritism? If the question doesn't answer itself in the negative, the recent conduct of the IRS should do so.

The Justice Department's excesses in surveillance of media organizations have had one benefit: They've focused media minds on the dangers of out-of-control government. On May 22 the New York Times published an editorial denouncing the surveillance of Rosen. Atypically for the Times, particularly for an editorial dealing with the Obama administration's wrongdoings, it was straightforward, reasonably argued, and free of snide references to Fox News, congressional Republicans, or George W. Bush.

The media would be formally beholden to the government if it granted them special legal privileges beyond the protection that the First Amendment affords to everybody. When journalists are beholden to the government, the result is bad journalism, corrupt government, and the diminution of freedom. That's the lesson of Obama's first term.

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