Gazette-Journal — Federal shield law is needed to protect your right to know

• By: ASNE staff
• On: 08/24/2010 10:42:00
• In: Shield law editorials

Reno (Nev.) Gazette-Journal
August 24, 2010

On the surface, a law limiting the circumstances under which a reporter could be subpoenaed by federal authorities to disclose their sources might appear to be special-interest legislation.

It's not.

When a federal prosecutor subpoenas a reporter -- as the New York Times' Judith Miller was subpoenaed several years ago in connection with the leak of CIA employee Judith Plame's name to a columnist -- the reporter isn't really the target.

Instead, the real target is the reporter's sources -- men and women who have the audacity to try to shine a little light on what those in power prefer to keep in the dark.

The real target is your right to know.

Miller eventually spent three months in jail for refusing to give special prosecutor Patrick Fitzgerald information that he already had. Only when Miller was given permission by the source to provide Fitzgerald his name was she freed.

But that wasn't the last time that the Department of Justice targeted a reporter; nor was it limited to the administration of Republican President George W. Bush.

As John F. Sturm, president and CEO of the Newspaper Association of American, recounted on this page on Aug. 18, in the administration of Democratic President Barack Obama, the Justice Department brought back a subpoena issued to James Risen, a Pulitzer Prize-winning reporter for the New York Times, who revealed that the CIA had intended to give Iranian scientists flawed technical specifications but instead shared with them valuable nuclear technology.

In fact, since Miller's ordeal, journalists have faced increasing pressure to reveal the identities of sources with subpoenas from prosecutors, criminal defendants and civil litigants against TV and newspaper reporters, and a growing number of online journalists.

That's why it is critical that the U.S. Senate approve S. 448, the Free Flow of Information Act, not to protect reporters but to protect the American public's right to know.

When the federal government can use the threat of jail time as a cudgel to obtain a whistle-blower's identity, there will be fewer whistle-blowers and a lot more government secrets.

The Senate bill -- sponsored by Republicans Richard Lugar and Lindsay Graham and Democrats Charles Schumer, Patrick Leahy and Arlen Specter -- passed the Senate Judiciary Committee in December. A similar bill has passed the House of Representatives twice by wide margins.

Because of national security concerns, the bill has been modified over the past six years to include exceptions when the government is seeking information that could thwart a terrorist attack, for instance.

In fact, it largely follows guidelines already in effect in the Justice Department but easily ignored prosecutors desire.

S. 448 is a reasonable, limited version of the shield laws already approved in most states. It deserves support.