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Lancaster New Era — Swift action urged on federal Shield Law

Lancaster News Era
September 8, 2010

As summer gives way to fall, the public's attention is turning to November's midterm congressional elections.

The election campaign is crucial to the democratic process, of course. But this year, it could divert attention away from legislation of equal significance to a free republic the federal Free Flow of Information Act, commonly known as the Shield Law.

Lancaster News Era
September 8, 2010

As summer gives way to fall, the public's attention is turning to November's midterm congressional elections.

The election campaign is crucial to the democratic process, of course. But this year, it could divert attention away from legislation of equal significance to a free republic the federal Free Flow of Information Act, commonly known as the Shield Law.

The federal Shield Law, as proposed, would help ensure the public's right to know by enabling journalists, for the most part, to protect confidential sources when subpoenaed in criminal and civil cases.

This would be a qualified privilege, however, not an absolute one.

Journalists would have to disclose their sources if a court determines that the information came from criminal conduct. They would have to disclose information deemed material to preventing or identifying acts of terrorism. They would have to disclose information necessary to stop or prevent a specific case of death, kidnapping or substantial bodily harm.

In a post 9/11 America, these are reasonable exceptions.

Pennsylvania and 31 states have media shield laws, and others follow court precedent. But there is no shield law on the federal level.

The need for a federal Shield Law, which would provide some uniformity to the patchwork of state laws, remains crucial.

A subpoena was issued in April to a New York Times reporter who revealed in a book that the CIA intended to give Iranian scientists flawed technical specifications but may, in fact, have shared with them valuable nuclear technology.

Also, a subpoena was issued to a Detroit Free Press reporter who had written a series of articles about a federal prosecutor under investigation for misconduct during a high-profile terrorism trial.

Previously, a former New York Times reporter spent 85 days in jail in 2003 for refusing to comply with a subpoena in connection with the "outing" of CIA officer Valerie Plame.

And, journalists and media companies were hauled before a judge in an attempt to have them reveal their confidential sources in the Enron and Abu Ghraib scandals.

These stories likely would not have seen the light of day, had it not been for critical information provided by confidential sources. And those confidential sources  and the journalists they confide with deserve to be protected.

The importance of confidential sources to newsgathering cannot be overstated. While they should be used sparingly, the information they provide can save the nation's treasury and, even, lives.

A confidential source must be confident that his or her identity will be protected. Likewise, a reporter should not fear jail when working on groundbreaking stories.

The quest for a federal Shield Law has been seven years in the making. It began in earnest after a federal judge ruled in 2003 that there was no reporter privilege, qualified or otherwise.

Senate Bill 448 is just the latest version of the proposal making its way through Congress, and it is a product of several years of negotiation between the bill's supporters and congressional members and staff.

Years of scrutiny, debate, compromise and redrafting that went into the bill could be all for naught, though, if lawmakers fail to act before the current session ends.

That's why lawmakers should act now  before the election rush. 

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