Monterey County Herald —Bring shield law to federal level

• By: ASNE staff
• On: 05/14/2007 15:11:45
• In: Shield law editorials

The Monterey County (Calif.) Herald
May 13, 2007

Try to picture a reporter's confidential source. You might envision a shadowy character who makes a living selling information, or perhaps a spurned spouse, or a trench-coated character in the Deep Throat mode.

Reality is less dramatic.

The typical confidential source is likely to be a police officer, a lawyer or even a judge, a banker, a city official or a teacher. Often, not always but often, they are providing information for good reasons over the phone or over lunch, not in a dark parking garage. They know something they think the public needs to know. Sometimes, the information is self-servingthe outing of Valerie Plame comes to mindbut even then there's a good chance the public will benefit from the exchange.

For the most part, sources provide leads, not quotes. They make suggestions about places to look, questions to ask, often about the workings of government, law enforcement or commerce. If you read a newspaper article about how some government agency short-changed the public or how some company was paid too much for too little, the odds are excellent that a confidential source was involved, even if the story never quotes or even mentions "sources."

The ability of journalists to protect sources, much the way police detectives must sometimes protect their sources, is appropriately cemented in California statutes as the shield law, Section 1070 of the Evidence Code. It says a legitimate news gatherer cannot be found in contempt of court for refusing to disclose the source of information used for a news account or refusing to turn over any other unpublished information. Similar laws are in place in 31 other states.

It is a good law whose existence often surprises lawyers and even judges, principally because it is invoked so seldom. There are no well-known examples of the California shield keeping killers out of prison or doing anything else to inappropriately derail the judicial and administrative processes.

Judges have wisely ruled that California's shield law is not absolute. A reporter can be compelled to break a confidence if it is shown that the information is critical to a fair result in a court case and if the lawyers involved can demonstrate they have exhausted other methods to uncover the information. Such outcomes, though, are rare. Ultimately, the shield law provides no special privilege to journalists because its larger role is to protect legitimate news sources, protecting whistle-blowers and others whose lives or livelihoods might be jeopardized by exposure.

Unfortunately, when reporters in states with shield laws make agreements to keep source names out of the spotlight, they must add a qualifier. The promise will be kept but only if any subsequent legal proceedings are held in state courts. If the federal courts come into play, as they did in recent cases such as the BALCO or Plame matters, the pledge of confidentiality is worthless.

That's one of the primary reasons a federal shield law is needed, one much like the proposed law now making the rounds in Congress. The bipartisan Free Flow of Information Act would help improve reportage at the local and federal levels without unduly jeopardizing any legitimate public interests.

Like the California version, the federal shield would not be absolute. Prosecutors still could win access to source names in special cases. It also would allow judges to order disclosure to prevent "imminent and actual harm" to national security.

From the media's perspective, timing of the bill hardly could be worse. The standing of the mainstream media has seldom been lower. Its complicity in building a case for war in Iraq and the cozy reporter-administration relationships demonstrated by the Plame case should make reasonable people question the wisdom of helping the national media protect sources.

But while this bill could help the Judith Millers and Tim Russerts of the press corps to continue their kid-gloves coverage, it will prove invaluable to hundreds of more aggressive and conscientious reporters in Washington and thousands of reporters trying to help the public unravel the mysteries of city halls and sewer commissions from coast to coast. If legitimate sources of important and sensitive information trust that they can speak to the press in confidence, the public will get a more honest account of the public's business.