Des Moines Register — Pass federal shield law to protect free press

• By: ASNE staff
• On: 08/31/2010 13:04:00
• In: Shield law editorials

Des Moines (Iowa) Register
August 31, 2010

The First Amendment's protection of a free press is severely diminished if the government can blithely force reporters to reveal the identities of confidential sources of information. Congress has for several years debated creating a "shield law" protecting journalists, and that bill should become law before the current session ends in December. The watchdog role of the media is at stake.

Journalists, no less than any other citizens, are required to testify in criminal or civil cases if called. But it is widely acknowledged that, in some cases, such compelled testimony could damage the public interest. Vital information may not become public because reporters would fear promising confidentiality to sources, and confidential sources would clam up for fear of losing their jobs or facing personal harm.

The most famous example of journalists exposing wrongdoing based on information supplied by a confidential informant occurred during the Watergate era when Washington Post reporters uncovered Nixon administration crimes. That story may well have evaporated had the Post's reporters been forced to reveal their confidential sources to the government.

Many states have enacted shield laws. In Iowa, the state Supreme Court set a high bar against journalist subpoenas. There is, however, no consistent national standard in the federal courts for judges in cases where prosecutors or litigants demand testimony from reporters in criminal or civil cases.

As a result, reporters - and their employers - cannot be sure whether they should risk promising confidentiality to a source. This is not a hypothetical problem: In 2006, an estimated 800 subpoenas were brought against journalists in federal courts, according to a survey for a University of Minnesota law review article. Since 2001, three journalists have been jailed by judges for refusing to testify, and others have faced threats of jail or substantial fines for contempt of court.

The U.S. House passed a federal shield law in March 2009 by unanimous voice vote, and the U.S. Senate Judiciary passed a similar bill last December. The legislation would establish uniform rules for federal courts, requiring that before a journalist could be forced to testify, the information sought must be narrowly defined and essential to a criminal or civil case. Prosecutors or civil litigants first would have to exhaust all "reasonable" alternative sources before seeking testimony from a journalist. And, a judge could bar testimony if a journalist demonstrates disclosure is not in the public interest.

The Senate version would not protect journalists in the case of federal investigations related to terrorism or national security. And while the bill recognizes that journalism happens on a broad spectrum of media today, including magazines, books, film documentaries and Internet blogs, sponsors recently pledged to add an amendment to say the shield law would not protect document "dumps," such as WikiLeaks, which revealed tens of thousands of military reports from Afghanistan.

This raises questions about the definition of "journalist" in an online world. Anyone can put information online, but neither Congress nor the courts is likely to grant every citizen a meaningful shield against testifying in criminal or civil cases. Still, as time goes on, the practice of journalism will evolve, and the principle of protecting the free flow of information in the public interest should be applied to a wider group of people who might reveal another Watergate.