Palm Beach Post — Pass federal shield law

• By: ASNE staff
• On: 10/16/2007 15:26:38
• In: Shield law editorials

The Palm Beach Post, West Palm Beach, Fla.
Oct. 16, 2007

A key safeguard of American democracy is reporters' protection from being compelled to reveal their sources. That protection helps the public to know what its government is doing, and for decades it was reinforced by what most courts took as Supreme Court precedent in 1972 - along with decades of Justice Department policy and shield laws in most states, including Florida.

But a recent trend demonstrates the need for a federal shield law. Legislation to create one comes up for a vote today on the House floor, having passed the House Judiciary Committee in August and the Senate Judiciary Committee on Oct. 4. According to the American Society of Newspaper Editors, which supports the legislation, more than 40 reporters over the last several years have been subpoenaed or questioned about their confidential sources and notes, in criminal and civil cases in federal court.

In 2001, for example, the Justice Department brought contempt charges against a Texas freelance writer, who spent 168 days in jail for refusing to testify before a grand jury about interviews from her investigation of a murder. In August 2003, Judge Richard Posner of the 7th U.S. Circuit Court of Appeals ignored that Supreme Court decision and ordered a reporter to give up taped interviews. In 2004, reporters in three federal jurisdictions were jailed or threatened with jail.

News organizations prefer that their sources go on the record. The celebrated 2005 jailing of New York Times reporter Judith Miller, for refusing to divulge who told her the identity of a covert CIA operative, illustrates the political agendas that often can confuse the issue. But that Valerie Plame-Scooter Libby case aside, the public interest depends upon information from retribution-fearing whistle-blowers that would not come out if the source was known. Examples include revelations of secret CIA prisons, President Bush's warrantless wiretapping program and conditions at Walter Reed Army Medical Center.

There is no perfect solution, but Congress can strike a reasonable balance with the Free Flow of Information Act. Rather than set an absolute privilege, the law would require surrender of information relevant to imminent threats that can be obtained no other way. And in an age when the credibility of responsible news organizations is being harmed by imitators, the bill defines journalists as people regularly involved in news gathering and dissemination. The protection in this legislation applies to reporters, but the real beneficiaries are Americans who believe that democracy runs best in the light.