Detroit News — Why a federal shield law is necessary

• By: ASNE staff
• On: 05/24/2007 18:49:05
• In: Shield law editorials

The Detroit News, op-ed by Christine Tatum, president of the Society of Professional Journalists
Wednesday, May 23, 2007

Regardless of whether you think journalists use too many anonymous sources, it's hard to argue that they don't need to promise confidentiality sometimes.

Many of the biggest investigative stories of our age have been based in part on information shared with a reporter by someone who wanted to keep his or her identity a secret. Anonymous sources handed over the Pentagon Papers and unmasked the culprits behind Watergate and Enron. They have outed some of the nation's worst corporate polluters. They have helped inform Americans' debates about the Iraq War, the proliferation of nuclear weapons and global warming.

Yes, sources almost always have an agenda when they speak up, but sometimes they have information of vital interest to the general public and much to lose if they're caught passing it along. If journalists can't protect their sources' identities, you will be much less informed about the world.

Currently, 49 states (Wyoming is the only unenlightened one) have shield laws or operate under court rulings that grant journalists and their sources a "privilege" much like those afforded to clergy, lawyers and their clients and therapists and their patients. This protection applies only to local and state cases, not federal ones.

Lately, federal prosecutors have dragged too many journalists into court, flaunting subpoenas for notes, work product and recollections of private conversations. The feds' arrogant insistence that journalists should be compelled to act as arms of law enforcement undermines free speech, a free press and an informed citizenry.

Journalists need a federal shield law. Thankfully, one has been reintroduced in Congress. The Free Flow of Information Act of 2007 has bipartisan support in the House and Senate. The bill's sponsors include Reps. Mike Pence, R-Ind., and Rich Boucher, D-Va., and Sens. Richard Lugar, R-Ind., and Christopher Dodd, D-Conn. All four have fought for a federal shield law for a couple of years, arguing that transparency is good for democracy even if it exposes politicians to more scrutiny.

Among the bill's provisions:

• The federal government could not compel a person covered by the shield to provide testimony or produce documents without first showing the need to do so by a "preponderance of evidence."
• Journalists can be compelled to reveal the identity of sources when the court finds it necessary to prevent "imminent and actual harm to national security" or "imminent death or significant bodily harm." Journalists also may be compelled to identify a person who has disclosed trade secrets, health information or nonpublic personal information of any consumer in violation of current law.
• People covered by the shield would be those "engaged in journalism." Journalism is defined as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news and information for dissemination to the public." The bill does not explicitly protect bloggers, but to the extent a court determines they are engaged in the practice of journalism, they are likely to be shielded.

Even with the protection of a federal shield law, journalists should use anonymous sources sparingly and take great care to explain to the public why a source's identity needs to remain secret. More Capitol Hill reporters should insist their conversations are on the record. Newsrooms should tighten rules regarding the use of anonymous sources, which undermine the credibility of the news and leave journalism with black eyes at the hands of more reporters than we have the space to name here.

A federal shield law won't end journalists' abuse of anonymous sources, and it won't end prosecutorial witch hunts. It will, however, help the public have access to important information, and that, in the end, is what really matters.