Daily Freeman – Journalists and sources

• By: ASNE staff
• On: 11/07/2007 16:13:18
• In: Shield law editorials

Daily Freeman, Kingston, N.Y.
Nov. 7, 2007

The U.S. Senate is dithering over legislation to extend federal protection to journalists and their confidential sources. It's long past time to move forward and adopt sensible protections that support the operation of the First Amendment in federal courts.

The House already has overwhelmingly passed, 398-21, its version of the Free Flow of Information Act. We are happy to report that local U.S. Reps. Maurice Hinchey, D-Hurley, John Hall, D-Dover Plains, and Kirsten Gillibrand, D-Greenport, all voted to approve the bill.

Now, however, what are described as a handful of senators have blocked Senate consideration of the bill, a move that may force advocates to bring a different version to the floor. While the Senate version of the legislation would be an improvement over the status quo, which puts reporters and their confidential sources at risk of subpoena and imprisonment, passage of a separate Senate bill would subject the matter to a conference committee to resolve differences. That could reopen some key protections for reconsideration, which could mean dilution or elimination.

The protections are needed now. Under the Bush administration, the Department of Justice has flouted departmental guidelines that since 1973 effectively had extended federal confidentiality protections to journalists and sources. Not only do the guidelines have no force of law, but they also do not restrain special prosecutors and civil litigants, who increasingly have turned to court action against journalists. According to the American Society of Newspaper Editors, which has taken a lead role in advocating the legislation, 19 journalists have been subpoenaed since 2001 for confidential information by federal and special prosecutors. Four have been jailed for declining to reveal their sources.

The legislation would not give reporters and their sources unqualified immunity from subpoena. Rather, the legislation would balance the interests of the federal legal system, both criminal and civil, against the public interest in a free press that vigorously investigates wrong-doing, sometimes relying on confidential sources to do so. Recent examples of such reporting are the poor conditions for injured veterans at Walter Reed Army Medical Center, the Enron scandal, the abuse of prisoners at Abu Ghraib prison and steroid abuse in Major League Baseball.

The goal of the legislation is to make journalists the last resort of prosecutors and civil litigants, rather than the first.

Forty-nine states already recognize such protections, either through statute or precedent.

Finally, the legislation would clarify the environment in which journalists and prosecutors work by adopting clear standards for both that make sensible statutory exceptions in the public interest to the principle of confidentiality.