Daily Freeman — The need for a shield law

• By: ASNE staff
• On: 08/10/2007 16:44:02
• In: Shield law editorials

Daily Freeman, Kingston, N.Y.
08/01/2007

Congress should adopt proposed federal protections for journalists and their confidential sources.

Based on Department of Justice guidelines dating back to 1973, the proposed Free Flow of Information Act would give reporters and sources the same measure of federal protection against being forced to testify that most states now give against such compulsion under state law.

Among recent national stories that depended on confidential sources are the likes of the use of steroids in Major League Baseball, the abuse of prisoners at Abu Ghraib prison in Iraq, and the deplorable conditions for patients at Walter Reed Army Medical Hospital.

Federal law provides no formal protection for such important work. In the absence of a federal statute, the Department of Justice guidelines have no force of law. And the Department of Justice lately has been simply disregarding those guidelines, which had worked so well for nearly 30 years.

In the past few years, more than 40 reporters have been subpoenaed or questioned in federal court about their sources or work, according to the American Society of Newspaper Editors.

Historically, such questioning has been rare, a last resort by federal prosecutors and judges. It's become increasingly routine, however, to take the shortcut of compelling reporters to divulge their sources at the outset of an investigation.

That's a problem. Routinely forcing reporters to divulge sources will give potential sources pause before talking to reporters in the first place. A potential whistle-blower who cannot be given a reasonable guarantee of anonymity for telling about wrongdoing, particularly in high places, is unlikely to blow that whistle, lest the sound be traced back to his lips.

The proposed federal shield law would not be an absolute privilege, but, rather, would balance the continuing value of a vigorous media with the overall national interest presented by a specific case.

The law would force prosecutors and courts to prove forcing reporters to disclose their sources in a particular case outweighs the public interest in the confidential gathering and publication of news.

The public interest in a democracy, which depends on information for informed decision-making by voters, is not furthered by making reporters an investigatory arm of the government.

Congress should act to codify federal protections for journalists and their confidential sources. We'll all benefit from such protections.