Palm Beach Post — Reporter shield bill lost in Senate

• By: ASNE staff
• On: 06/27/2008 16:05:57
• In: Shield law editorials

Don Wright
The Palm Beach Post, West Palm Beach, Fla.
June 24, 2008

A bill that would protect journalists from being compelled to disclose their confidential sources is stuck in the Senate. Despite significant bipartisan support for a federal reporters’ shield law, the legislation that would create one has been sitting for months awaiting a floor vote. It isn’t clear what it will take to shake the bill free, but a letter in support of the legislation that will soon be sent to Senate leaders from dozens of state attorneys general will hopefully have the desired effect.

The Free Flow of Information Act passed the Senate Judiciary Committee by a 15-to-4 vote last fall, and a similar bill passed the House by a lopsided 398-to-21. But the leadership of the Senate refuses to schedule a full vote, leaving an important piece of legislation that enjoys widespread support from both sides of the aisle in frustrating limbo.

In essence, the bill would grant journalists a qualified privilege from having to disclose their confidential sources to federal prosecutors, defense attorneys or civil litigants. The privilege would not be absolute, so there still would be occasions when journalists could be forced to share a source’s identity or other information. But the standard for compelled testimony would be higher than for the average person, in recognition of the substantial public interest in promoting and protecting news gathering.

A similar privilege is recognized in every state but Wyoming, through either state statute or court precedent. Yet the lack of special protections at the federal level has put the confidentiality of sources at risk, which in turn handicaps the ability of the press to perform its mission of informing the public and holding government accountable.

Some of the push-back against the bill is coming from the Justice Department. It has been raising fears that granting a reporter privilege might interfere with law enforcement an argument without merit since the legislation was largely modeled on the department's own guidelines on when to subpoena journalists.

In response, state attorneys general are lining up to counter the fears raised by the department. The National Association of Attorneys General intends to send a letter soon in support of the measure to the Senate’s Democratic and Republican leadership. At least 36 state attorneys general, including Florida's Bill McCollum, have signed on to the letter.

“As the states’ chief legal officers,” the NAAG writes, “attorneys general have had significant experience with the operation of these state-law privileges; that experience demonstrates that recognition of such a privilege does not unduly impair the task of law enforcement.”

In a separate statement, McCollum said: “It is essential for the public to have access to information pertaining to their government to hold it accountable. Often it is members of the media who provide that information, and this proposed legislation would protect journalists who are attempting to preserve that freedom.”

The states have a long history with reporters’ privileges, and this federal legislation has used that experience to strike a proper balance. There will be those rare occasions when the public interest dictates that a reporter disclose a confidential source. But the news media's files cannot be the first place a police investigation starts.

President Bush’s former solicitor general, Ted Olson, called the legislation “well balanced and long overdue.” The Senate should accept that advice, take note of the support from the attorneys general and pass the legislation.