Indianapolis Star — Shield law compromise must put public first

• By: ASNE staff
• On: 08/07/2007 15:50:18
• In: Shield law editorials

The Indianapolis Star
Aug. 6, 2007

Our position: Congress should help journalists keep government honest.

Whether the proposed federal shield law for journalists that was approved by the House Judiciary Committee last week would have kept New York Times reporter Judith Miller out of jail is an open question.

The exceptions that have been carved out for national security, bodily harm and health, trade secrets and financial disclosures would sorely limit journalists' ability to protect the identity of confidential sources. That ability, which is sometimes necessary to pry loose information of vital public importance, is safeguarded in 32 states, including Indiana, but not under federal law.

Two Hoosier Republicans, Rep. Mike Pence and Sen. Richard Lugar, have led the charge to extend this practical application of the First Amendment to people such as Miller, who seek to ferret out the most important public information of all. It was an injustice when a White House insider committed the grave act of outing a CIA agent, yet it was the watchdogs, Miller and another newsperson, who got in trouble first.

Two facts of life persist: Some government secrets should not be kept, and some folks who would divulge them will do so only with assurance of anonymity. That assurance is difficult to give when a reporter is ordered by a court to expose his or her source under pain of imprisonment. Hence, the public's interest in the journalist's shield.

Balancing legitimate competing interests requires poking some holes in the shield. The question for the full House and later the Senate is whether the gaps are so great as to render the measure an empty statement of principle.

Yet another thorny issue has to do with the definition of “journalist.” Non-establishment gadflies historically have demanded the same legal status as the Washington Post notables; and their ranks have swollen exponentially in the era of the blogger. The Judiciary Committee has agreed to a compromise under which journalists essentially are defined as those who do it for a living, whether it is through media conglomerates or via advertising-supported Web sites. The Society of Professional Journalists has asked that news practitioners be defined as broadly as possible; but virtually any designation, especially if used by government, risks breaking from the American tradition of an unlicensed and independent press.

Exceptions and definitions. Two tall orders for Congress, especially in a time of war and terrorism. Lawmakers ought to do what has served the nation well for more than two centuries, and err on the side of openness.