Houston Chronicle — Shielding the press

• By: ASNE staff
• On: 06/23/2008 16:03:25
• In: Shield law editorials

U.S. Senate should vote to protect reporters from most forced disclosures of confidential sources

Houston Chronicle
June 20, 2008
Copyright 2008 Houston Chronicle

A free press and aggressive news media are essential features of American democracy. In order to gather information and publish stories that government and other powerful societal interests wish to suppress, reporters often must promise their sources confidentiality to gain cooperation and protect them from retaliation.

Courts in the District of Columbia and every state in the union except Wyoming legally recognize in some form that journalists cannot be compelled to disclose the identity of sources except in extraordinary circumstances, such as defending national security interests or solving serious crimes.

Unfortunately, there is no such protection in federal court, where jurists have shown an increasing willingness to threaten, jail and fine reporters who refuse to identify their contacts, even when there is no compelling public interest at stake. The latest example is former USA Today reporter and university professor Toni Locy, who was subpoenaed in a privacy suit brought against the government by Dr. Steven Hatfill.

The former Army scientist had been investigated by the FBI in connection with the 2001 anthrax attacks. His lawyers asked the judge to compel Locy to reveal the sources of several stories she wrote about the probe. Locy refused, and the court ordered her fined $5,000 a day until she complied. Although that judgment has been suspended pending appeal, such rulings unfairly penalize news reporters while deterring potential sources.

Federal lawmakers recognize the need to shield journalists from unjustified disclosure of sources while giving the judiciary better guidelines for making those decisions. The House of Representatives voted last fall to approve the Free Flow of Information Act by a veto-proof margin, and both presidential candidates support it.

The law would specify the value of protecting journalists' ability to perform their duties and would allow judges the authority to determine in specific cases whether public interest is best served by compelling disclosure of sources or in maintaining their confidentiality. It defines a journalist as someone who gathers news for substantial financial gain.

The Senate Judiciary Committee has reported out its version of the bill by a 15-4 bipartisan majority. However, Senate leaders have yet to bring the legislation to the floor for a vote. Bush administration officials, including Attorney General Michael Mukasey and Homeland Security Secretary Michael Chertoff, oppose the shield law, arguing that protecting the confidentiality of journalists' sources would impede investigation of national security threats.

The ranking Judiciary Committee Republican, Pennsylvania's Arlen Specter, disagrees. "If we are to have a free press," he said, "we must protect the relationship between journalists and trusted sources to whom journalists have promised confidentiality."

With the bill stalled in the Senate, supporters of the shield law are campaigning to force action. The National Association of Attorneys General has prepared a letter urging the Senate to pass a shield law, and 30 state attorneys general have signed it. It needs 36.

Texas Attorney General Greg Abbott, a longtime supporter of qualified legal protections for journalists, is now the 31st to announce his support for the shield law. In a letter to Senate Majority Leader Harry Reid, D-Nevada, and Minority Leader Mitch McConnell, R-Kentucky, Abbott states, "Congress has the opportunity to strengthen First Amendment-guaranteed freedoms of the press and speech while also protecting national security and law enforcement interests."

Journalists cannot do their jobs if federal judges and prosecutors can force reporters to be investigators for law enforcement or betrayers of those who inform the public of government wrongdoing. The Senate should promptly pass this responsible legislation by a margin sufficient to override the White House's ill-considered opposition.