Charlotte Observer — Senate must pass shield law to protect public's right to know

• By: ASNE staff
• On: 08/23/2010 09:20:00
• In: Shield law editorials

The Charlotte-Observer, N.C.
August 20, 2010

From John F. Sturm, president and CEO of the Newspaper Association of America:

With Wikileaks.org recently publishing more than 91,000 classified military reports from the war in Afghanistan, some have questioned whether now is the right time to enact a federal shield law. The journalism community, as well as members of Congress who value the free flow of information, are in firm agreement: The time has never been more right.

Unlike the source-to-screen approach of Wikileaks, professional journalists do more than simply post raw data. The important role journalists play in our democracy can never be replaced by websites that publish source documents without the editorial oversight, research, analysis and balanced reporting that are so essential to public understanding.

It is these working journalists who face escalating pressure to reveal their confidential sources. Congress must protect the public's right to know by enabling journalists - in limited and defined circumstances - to protect confidential sources when subpoenaed in criminal and civil cases.

Everyday journalists rely on government or corporate whistleblowers to share information they would not normally be able to access. Such sources enable members of the press to craft stories that are vital to the public interest. Yet many sources would not come forward without a promise of confidentiality.

The goal of a federal shield bill is to create consistent and clear rules for judges, prosecutors, civil litigants, journalists, and sources.

The legislation is modeled on existing case law and the Department of Justice's own regulations for issuing subpoenas to news media - rules that have been on the books for decades.

Supporters of a federal shield law acknowledge that it would not be reasonable to protect the source's identity in every case, which is why the Senate bill contains broad exceptions when the government seeks information from a journalist that could thwart a terrorist attack or otherwise prevent harm to national security.

Opponents are wrong to suggest that a federal shield law would encourage more government leaks. With a clear legal framework for when a journalist can and cannot protect a source, both journalists and potential leakers will likely be more mindful of whether public disclosure of confidential or classified information would truly serve the greater good.

Moreover, with more legal certainty, potential leakers may be more inclined to work with professional journalists who are more likely to get the story right, rather than simply upload classified documents to faceless websites.

The House passed a shield bill twice, most recently in March of last year by a unanimous voice vote. The bill currently being considered by the Senate, the Free Flow of Information Act (S. 448), has been modified considerably over the past six years to address national security concerns. The Senate Judiciary Committee passed the bill in December 2009 by a 14-5 bipartisan vote.

This strongly bipartisan legislation - rare in our current political climate - heeds the warning from our founding fathers: a free and democratic society cannot survive without an informed citizenry.