New York Times — Toward a federal shield law

• By: ASNE staff
• On: 05/08/2007 11:34:24
• In: Shield law editorials

The New York Times
Published: May 3, 2007

When the subject of a journalists’ shield law comes up in Congress, as it has this week, the issue is often framed as an attempt by reporters to give themselves special privileges to the detriment of criminal investigations and even national security.

A shield law does protect journalists. But the real benefit for society is that it protects sources, allowing whistle-blowers or other insiders to expose wrongdoing in government and the private sector. The information they provide is vital to the public’s ability to know what government and businesses are doing and to make informed judgments.

The idea of shielding reporters from being subpoenaed or questioned about confidential sources is hardly new or radical. A shield law gained impressive support in the last Congress, but got lost in the run-up to the midterm elections. Shield laws are currently in force in 32 states and the District of Columbia, and 17 other states have recognized a reporter’s privilege through judicial decisions. There is no evidence that prosecutions have suffered.

Yesterday, six members of Congress introduced a new, balanced and bipartisan bill that would allow a reporter to protect the identity of a confidential source in most circumstances. The measure, the Free Flow of Information Act of 2007, is supported by dozens of media companies and other journalistic organizations, including The New York Times Company.

The bill is sponsored in the House by two Democrats, Rick Boucher and John Conyers, and two Republicans, Mike Pence and Howard Coble, and in the Senate by Christopher Dodd, Democrat of Connecticut, and Richard Lugar, Republican of Indiana.

It is not a blank check. The bill would set reasonable criteria that would have to be met before unpublished information could be subpoenaed from reporters in a federal criminal or civil matter. Prosecutors would have to show that they had exhausted alternative sources before demanding information. They would need to show that the sought-after material was relevant and critical to proving a case, and that the public interest in requiring disclosure would outweigh the public interest in news gathering.

The bill has strong protections for confidential sources but would permit disclosure to avoid “imminent and actual harm” to national security.

The Bush administration has opposed legislative efforts to enact a shield law by making the bogus argument that it would hurt national security. The only thing a federal shield law would threaten is the administration’s ability to make policy in secret. This measure of protection is long overdue.