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Newspaper Tree — Federal Press Shield Law Would Protect Public's Right to Know

Confidential sources often have information of vital interest to the public and much to lose themselves if they are caught passing it along. If journalists cannot protect their sources’ identities, we will be much less informed about the world and our democracy.

by James C. Harr

Confidential sources often have information of vital interest to the public and much to lose themselves if they are caught passing it along. If journalists cannot protect their sources’ identities, we will be much less informed about the world and our democracy.

by James C. Harrington

Newspaper Tree, El Paso Texas
Oct. 1, 2007

The U.S. Senate is currently considering a proposed federal press shield law, S.2035, which would protect confidential news sources. The U.S. House of Representatives has passed a similar bill already. A press shield law means that the federal government cannot go snooping and require journalists to give up confidential, anonymous sources of information or intimidate them if they report on issues unfavorable to the government.

Confidential sources often have information of vital interest to the public and much to lose themselves if they are caught passing it along. If journalists cannot protect their sources’ identities, we will be much less informed about the world and our democracy.

Both Sen. Kay Bailey Hutchison and Sen. John Cornyn should support this important First Amendment protection for the press because it assures that Americans will have greater access to truth behind the operations of government and large corporate structures. This, in turn, assures a more informed electorate. Transparency is good for democracy, even if it exposes politicians to more scrutiny.

Many of the major investigative stories of recent times have rested in part on information given to reporters by people who needed to keep their identity a secret, usually to protect their job. Anonymous sources handed over the Pentagon Papers during the Vietnam War and unmasked the Watergate and Enron perpetrators. They have fingered some of the nation’s worst corporate polluters, government corruption and scandals, and have helped inform Americans about the Iraq War, the proliferation of nuclear weapons, and global warming.

In recent time, federal prosecutors have dragged too many journalists into court, issuing subpoenas for notes and recollections of private conversations. They insist that journalists should be compelled to act as arms of law enforcement. Not only does this undermine free speech, a free press, and an informed citizenry, but also raises the issue of retaliation when the journalists expose yet again that “the emperor has no clothes.”

The bill is crafted carefully to protect both First Amendment and the public’s interests:

  • 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.”
  • A court can order journalists to reveal the identity of confidential sources if the judge finds it necessary to prevent “imminent and actual harm to national security” or “imminent death or significant bodily harm.” A court also can compelled journalists to identify a person who has disclosed trade secrets, health information or non-public personal information of any consumer in violation of current law.

The bill only extends a qualified privilege for journalists to keep their sources confidential. The government can still compel a source’s identity in cases involving terrorism and national security. Nor would the bill protect journalists from testifying if they witness a crime or know a person’s life is in danger.

The shield law carefully protects concerns about national security, and has strong, bipartisan support in the Senate. Its sponsors are Sen. Arlen Specter (R-PA) and Sen. Charles Schumer (D-NY), who have spoken well about a reporter’s need for confidential sources as conduits for the free flow of information about which we would not otherwise know.

We should encourage Sen. Hutchison and Sen. Cornyn to support this measure vigorously.

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Harrington is Director of Texas Civil Rights Project, a nonprofit foundation that promotes civil rights and economic and racial justice throughout Texas.

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