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Daily News — Forecast for federal shield law remains gloomy heading into Sunshine Week

The Daily News, Longview, Wash.
March 11, 2008

The New York-based Creative Coalition will run a series of print and broadcast public services ads promoting open government in conjunction with Sunshine Week, which begins Sunday. The nonpartisan public advocacy group hopes t

The Daily News, Longview, Wash.
March 11, 2008

The New York-based Creative Coalition will run a series of print and broadcast public services ads promoting open government in conjunction with Sunshine Week, which begins Sunday. The nonpartisan public advocacy group hopes to encourage a national dialogue on the importance of freedom of information and accessible, accountable government.

It's our hope that the coalition's Sunshine Week initiative helps jump start Senate dialogue on a House-approved federal shield law. The aptly named Free Flow of Information Act has been stalled in the upper chamber since clearing the Senate Judiciary Committee more than four months ago.

Giving reporters some measure of statutory protection against being forced to reveal confidential sources is important to the promotion of open government. Without the expectation of confidentiality, many would-be whistle blowers would hesitate to reveal government incompetence or wrongdoing. The Daily News doesn't use confidential sources except in rare instances and only with approval of the editor and publisher.

Washington state lawmakers have recognized the need for reporter privilege. The Legislature enacted a shield law last year that gives reporters strong protection in state courts, much like the exemption from testifying in court about privileged communications the law grants to spouses or attorney and client. But Washington's shield law has no force in federal courts.

The need for a federal shield law has become somewhat urgent in recent years. Before 2003, federal courts had been sympathetic with a reporter's need to protect the identities of confidential sources, drawing guidance from a separate opinion in a 1972 case by Supreme Court Justice Lewis Powell.

Powell's words were interpreted as partial recognition of reporter privilege.

In 2003, however, a federal judge ruled that there was no reporter privilege, qualified or otherwise. Federal prosecutors have since questioned more than 40 reporters about their confidential sources, according to The Washington Post. It's had a chilling effect on reporting and sources.

The proposed federal shield law would not provide absolute privilege of nondisclosure. Reporters could still be forced to reveal their sources in cases involving national security, the threat of death or bodily harm, the disclosure of business trade secrets or private health and financial information. Even with these exceptions, the measure would give working journalists significant protection in federal court. It has become necessary protection, in our view - necessary to ensuring the public's right to know.

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