Washington Post — Shielding Sources

• By: ASNE staff
• On: 08/10/2007 16:54:47
• In: Shield law editorials

Journalists need protection at the federal level

The Washington Post
Aug. 1, 2007

MANY OF the stories that expose government malfeasance, sear the nation's conscience, highlight violations of public trust or expose gross abuses of power come to light because people come forward to point journalists in the right direction or offer direct testimony on the condition that their names not be revealed. Protecting the identity of a source is a bedrock of American journalism.

Unfortunately, recent history has shown that some federal prosecutors and civil litigants do not value this flow of information as much as those of us in the media and the public do. In recent years, more than 40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases. While 49 states and the District of Columbia have shield laws or court decisions that protect the relationship between reporters and their sources, there is no statutory protection at the federal level.

A House bill sponsored by Rep. Rick Boucher, D-Va., and Rep. Mike Pence, R-Ind., would change that. The legislation would not offer an absolute privilege of non-disclosure to journalists. We don't advocate such a shield nor does The Washington Post Co., which has joined other media companies to lobby Congress on behalf of the bill, due to be voted on today by the House Judiciary Committee.

Instead, H.R. 2102 would compel the disclosure of a confidential source's identity in federal court under three discrete circumstances: “to prevent an act of terrorism against the United States or other significant specified harm to national security”; “to prevent imminent death or significant bodily harm”; and to identify a person who may have unlawfully revealed a business trade secret or disclosed private health information or “nonpublic personal information,” such as financial information.

Overall, a federal court must determine “that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.” This strikes us as a reasonable balance. Reporters should not be penalized for doing their jobs. Forcing them to divulge their sources without a compelling interest will slow the free flow of information to a trickle.