Alameda Times-Star — Finally, a set of rules for America's watchdogs

• By: ASNE staff
• On: 07/16/2007 14:37:21
• In: Shield law editorials

Alameda (Calif.) Times-Star (an edition of The Oakland Tribune)
June 20, 2007

CONGRESS HAS an opportunity this year to finally enact a federal shield law, named the "Free Flow of Information Act of 2007," governing the circumstances under which reporters and members of the media may be compelled to reveal confidential sources and information.

It's become a major concern the past few years as a result of more than 30 reporters being subpoenaed or questioned about their sources, notes and work products related to federal criminal and civil court cases and investigations.

The threat, of course, is that such governmental inquiries will restrict the free flow of information by forcing reporters to reveal confidential sources vital to such recent exposes as Major League Baseball's steroid scandal, the abuse of prisoners at Abu Ghraib prison in Iraq and the unacceptable conditions wounded veterans experienced at Walter Reed Medical Center.

Several reporters have even spent time in or been threatened with jail if they did not divulge their sources. Without some form of protection, sources of sensitive or secret information on such scandals are less likely to run a risk of giving data to reporters. That, in turn, lowers the probability of such wrongdoing being exposed to the press and the public.

Thirty-two states, including California, and the District of Columbia have shield laws covering state courts and 17 other states recognize protections called "a reporter's privilege" partially protecting them. But there is no uniform standard

governing members of the media at the federal level.

The "Free Flow of Information Act of 2007" introduced in both houses of Congress would establish a federal standard that at its heart is a set of balancing tests modeled after Justice Department guidelines in place for 30 years.

It gives journalists a qualified privilege of protection that could be overwritten only if a court determines "by a preponderance of the evidence" that the public interest in disclosure outweighs the public interest of a source being protected. A prosecutor, defendant or civil litigant seeking such information must also have "exhausted all reasonable alternative sources" of getting it.

Compelling a member of the media to identify a source could take place only in circumstances where nondisclosure could result in imminent harm to national security; death or significant bodily harm to an individual; prevent identification of an individual who has violated state or federal law by disclosing a trade secret of significant value, disclosing individual health information; or revealing private personal financial information.

Providing federal guidelines for the press has become more necessary under the Bush administration. At least 65 subpoenas trying to compel journalists to reveal sources have been issued by the Justice Department.

Reporters are "increasingly becoming the first stop rather than the last resort" for federal prosecutors, said John Sturm, president and CEO of the Newspaper Association of America.

But more than the media's right to gather and protect sources is at stake.

"It's about the public's right to know," said Rep. Mike Pence, R-Ind., co-sponsor of the bill in the House of Representatives.

As proposed, the act is not a perfect piece of legislation. Some argue that it doesn't give journalists enough protection. Others consider it not tough enough.

The time has come, however, to set down some rules governing the media's use and protection of confidential sources.

If the Free Flow of Information Act of 2007 passes, hopefully it will help provide the American public with the information it needs about the operations and foibles of government without hindering the media's performance of its traditional role as America's watchdog