Washington Post — A Federal Shield Law

• By: ASNE staff
• On: 09/05/2008 14:55:49
• In: Shield law editorials

The Senate should pass a bill that would protect reporters and their sources.

The Washington Post
August 29, 2008

A SENATE BILL that got mauled in the run-up to the summer recess but that has momentum for passage in the fall is the Free Flow of Information Act, a law that would protect the relationship between journalists and their sources. The District of Columbia and 49 states already do so. While we have a concern about one aspect of the legislation, this shield is needed on the federal level.

Putting the legislation together hasn't been easy. There were strenuous objections from the Justice Department and Republican senators who were concerned that the bill would hamper investigations, shield potential terrorists and compromise national security. It took months of painstaking negotiations by a bipartisan team led by Sens. Arlen Specter (R-Pa.), Charles E. Schumer (D-N.Y.) and Richard G. Lugar (R-Ind.) to get the bill to this point.

Under the proposed legislation, prosecutors who wished to compel a journalist to reveal a confidential source or the information the source provided would first have to exhaust all alternative remedies. In a criminal case they would also have to show that a crime had occurred and that “the protected information sought is essential” to the case. A federal judge could compel disclosure if the information “is reasonably likely to stop, prevent or mitigate” an act of terrorism, kidnapping, sexual abuse of minors, death or substantial bodily harm. Journalists are defined so as to ensure that “reporters” affiliated with possible terrorist groups could not use the law to duck prosecution. And the bill establishes procedures to avoid airing sensitive or classified information in open court.

We're concerned that the latest compromise weakens protections for reporters in a subset of cases, those involving leaks of classified information. In such cases, prosecutors would not have to exhaust other options before seeking to force journalists to reveal sources. And prosecutors would not have to prove that the protected information was “essential.” But judges would still be required to balance the public's right to know with the potential for “significant and articulable harm” to national security.

Overall, this bill would be an advancement in safeguarding the work of journalists. That's why The Washington Post Co. and other media organizations have lobbied hard to get the Free Flow of Information Act passed. The Senate should put the bill's passage at the top of its to-do list when it reconvenes in September.