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Dallas Morning News — Shield law passage good for democracy

The Dallas Morning News
September 3, 2010

Just as the path seemed to clear somewhat for a federal shield law for journalists, Wikileaks went and complicated matters.

The proposed shield law, aka the Free Flow of Information Act, would give journalists qualified protection against fishing expeditions by federal prosecutors who want names of confidential sources. The bill defends the free-press vision embodied in the Constitution, and similar protections are now the law in 49 states.

The Dallas Morning News
September 3, 2010

Just as the path seemed to clear somewhat for a federal shield law for journalists, Wikileaks went and complicated matters.

The proposed shield law, aka the Free Flow of Information Act, would give journalists qualified protection against fishing expeditions by federal prosecutors who want names of confidential sources. The bill defends the free-press vision embodied in the Constitution, and similar protections are now the law in 49 states.

The federal legislation has passed the House and cleared a stubborn hurdle – the Senate Judiciary Committee . Supporters were ready to ride that momentum in pressing for full Senate action this year, but then the online outlet Wikileaks published a flood of confidential military documents on the war in Afghanistan.

Was that a sign that government needs even more ways to seal the sieve of bureaucracy and that the Free Flow bill would make that job tougher?

First, the government hasn't appeared helpless in finding the source of compromising leaks, either in the Wiki case or others. Second, there's no excusing theft of sensitive documents when exposure could endanger lives. But skeptics of the Free Flow law shouldn't assume that passage would encourage and protect malicious people intent on betraying government secrets just because they can.

If anything, the proposed legislation could make it less likely that leakers, in collusion with journalists, would get away with a theft of records whose exposure endangers national security.

The law would subject a government subpoena to judicial review if a dispute arose over whether a reporter should be ordered to reveal a confidential source. A journalist would be compelled to divulge the name of a source when the leak could lead to a crime, terrorist act or breach of sensitive military or intelligence matters. That provision would make a government insider more reluctant to recklessly spirit out top-secret information.

As for protecting "virtual" information outlets like Wikileaks, those are already virtually out of reach of U.S. courts.

The trickiest matter for Free Flow supporters is perfecting the definition of just who qualifies as a journalist in today's online world. That definition has to meet the interests of free speech and a free press, along with national security.

Support for the legislation has been bipartisan. It passed committee 14-5 last year. Both John McCain and Barack Obama urged passage during the 2008 presidential campaign. It is supported by a coalition of media organizations – including A. H. Belo Corporation, parent company of this newspaper – because of the importance of a free press to democracy.

The government guards much information to protect the nation against outside threats. It also holds vast stores of information on domestic matters affecting the health and welfare of everyday people.

But when the government acts in a way that doesn't serve the public interest, the public deserves to know about it. Sometimes that story is available only from the inside, and the law ought to make sure it can flow freely to the light of day.

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