Daily Times — Shield law vital to flow of info

• By: ASNE staff
• On: 08/07/2008 12:43:03
• In: Shield law editorials

Ability to protect sources should be priority next session

The Daily Times, Salisbury, Md.
August 5, 2008

Because the U.S. Senate has a bad habit of not getting things done they way it should, a wholly unrelated dispute about an energy bill effectively killed a federal shield law for journalists. Late last week, the August congressional body came nine votes short of overriding Republican objections to bring up the shield bill ahead of the energy measure.

Had it come to a vote, the bill would have passed easily despite Bush administration objections -- as usual without specifics -- that it would harm national security. The House of Representatives earlier passed its version, 398-21.

There is an outside chance the bill could come up in September; given the crowded and shortened election year calendar, however, that seems unlikely. Instead, the bill's sponsors, who include several prominent Republicans, will have to start from scratch next year.

The measure would have come at an especially timely moment for journalists. Given the resources-strapped state of the news business, many news organizations might back away from a costly legal fight to protect a subpoenaed reporter.

Our government is based, in theory, on openness and transparency, but in practice that's not always the case, and a reporter's ability to protect a confidential source is critical to the free flow of information.

Several recent celebrated cases underscored the need for the law. For awhile it looked like the only people who might go to jail in the Barry Bonds steroid scandal were the two San Francisco Chronicle reporters who revealed it. They averted jail only when their source spoke up voluntarily. A former USA Today reporter faced jail and ruinous fines for refusing to testify in a suit against the Justice Department. She was spared when the department settled. And a New York Times reporter did go to jail in the special prosecutor's CIA leak investigation that resulted in the conviction of the vice president's top aide, Lewis “Scooter” Libby.

The proposed law is less controversial than its critics make it sound. Forty-nine states -- including Maryland -- have shield laws. The legislation in play essentially codifies the Justice Department's strict existing guidelines for subpoenaing reporters. (The special prosecutor in the Libby case was not subject to those guidelines.) The bill makes exceptions for cases involving terrorism or imminent harm.

It is frustrating to have come so close and fallen just short. Congress should make it an early order of business next year.