Washington Post — Time for the Shield

• By: ASNE staff
• On: 08/01/2008 11:22:13
• In: Shield law editorials

Federal legislation protecting journalists' sources is overdue for a Senate vote.

The Washington Post
July 24, 2008

APROPOSAL to protect reporters from having to reveal confidential sources passed the House of Representatives by an overwhelming margin last year. A similar measure was approved by the Senate Judiciary Committee, 15 to 4. The presumptive Republican and Democratic presidential nominees support it. So do the attorneys general of 42 states, who urged the Senate last month to act on the measure. Although 49 states and the District recognize a reporter's privilege, the absence of a federal statute undermines those protections, “producing inconsistency and uncertainty for reporters and the confidential sources,” a letter from 41 of the attorneys general noted. Sens. Arlen Specter (R-Pa.), Charles E. Schumer (D-N.Y.) and Richard G. Lugar (R-Ind.) have fine-tuned the measure to make it more acceptable to federal officials who have been adamant in their opposition. It is time for Senate Majority Leader Harry M. Reid (D-Nev.) to bring this bill to the floor.

It's important to understand how far this measure doesn't go. It provides far less than absolute protection to reporters against having to name their sources or turn over notes of confidential conversations. Under the measure, which The Washington Post Co. has joined with other news organizations in supporting, reporters could be compelled to name sources if those seeking the information -- such as prosecutors, law enforcement agents and defense lawyers -- show that they have “exhausted all reasonable alternative sources,” that the information is “essential” to the case and that disclosure is in the public interest.

Reporters would enjoy even less protection in cases involving national security, undermining the claims of intelligence agencies that the shield law would “make it difficult, if not impossible, to investigate harms to the national security,” as a January letter to Senate leaders put it. They could be compelled to reveal their sources if a judge found that the evidence would “assist in preventing” a terrorist act or “other significant and articulable harm to national security that would outweigh the public interest in newsgathering and maintaining a free flow of information to citizens.”

The tweaked version lays out mechanisms for judges to review sensitive information in secret and to provide for expedited decisions. It makes clear that judges would not second-guess whether information was properly classified in the first place. In cases involving leaks of national security information, officials would not have to prove that they had no other way to identify the confidential sources. Protections would be limited to those who are regularly engaged in news-gathering activities.

If these changes do not satisfy opponents of the bill, they should consider that, in effect, the next president is on record as supporting it. If this compromise does not pass, another measure will surely arrive with the coming administration.