San Jose Mercury News – Shield law key to watchdog journalism

• By: ASNE staff
• On: 11/06/2007 12:16:59
• In: Shield law editorials

San Jose (Calif.) Mercury News
Nov. 1, 2007

The commitment to a free press was so important to our nation's founders that it's in the Constitution. But for the past 35 years, an important free press tool - protections for journalists who use confidential sources - has been slowly eroding in the federal courts.

In recent years, more than 40 reporters have been quizzed in federal criminal or civil court about their confidential sources, and at least two have been jailed. But a bi-partisan solution is now at hand in the form of a meaningful federal shield law.

Earlier this month, the Free Flow of Information Act passed with a veto-proof majority in the House (398-21) and a slightly different version passed the Senate Judiciary Committee. Senate Majority Leader Harry Reid, D-Nev., should call for a floor vote on the House version, ensuring it would go to the president's desk.

Most journalists use confidential sources sparingly and as a last resort. And information they provide is usually supported by follow-up documentation or further interviews. In many instances, providing a source confidentiality is essential to the important watchdog role the press provides in our democracy.

The proposed federal protection is not about allowing journalists to be above the law. The House bill would allow federal courts to force the disclosure of a source under several circumstances, including if it would prevent a death or terrorist attack.

Until 1972, journalists had broad protection. The Supreme Court ruled then that the Constitution did not protect confidential sources. To protect journalists and their sources, 33 states, including California, have passed shield laws, and 16 others have had state court rulings that protect journalists.

The federal government must catch up.

The Bush administration opposes the legislation, complaining that it could harm national security and hamper its efforts to prosecute leaks. But the real reason the White House opposes a shield law is to shield its overused secrecy.

In recent years, important stories involving the Balco-sports steroid scandal and Wen Ho Lee spy case have involved confidential sources, with journalists forced into protracted, costly legal battles. Public service journalism requires a little protection for journalists and their sources. The House shield law is the quickest way to ensure it.