Washington Post — A needed shield

• By: ASNE staff
• On: 10/05/2007 17:46:08
• In: Shield law editorials

A bill protecting news sources is well balanced.

The Washington Post
Oct. 4, 2007

THE SENATE Judiciary Committee will mark up a bill today that would protect the relationship between journalists and their confidential sources at the federal level. The Free Flow of Information Act of 2007, sponsored by Sens. Arlen Specter (R-Pa.), Charles E. Schumer (D-N.Y.) and Richard G. Lugar (R-Ind.), would bring the federal government in line with 49 states and the District of Columbia. The legislation has gone through many constructive changes since it was first introduced in 2005 and deserves to become law.

Sources have talked to journalists on the condition of anonymity probably since the profession began. Because of them, criminality, malfeasance and other stories that government and others would prefer stay secret have come to light. The Pentagon Papers and the Watergate scandal are just two examples of the results of the daring exhibited by people who risked careers and personal safety for the public's right to know. But such courage is chilled when government hauls reporters into court to force them to divulge their sources. In recent years, more than 40 reporters have been questioned about their sources, notes and stories in civil and criminal cases.

We strongly support efforts to protect journalists and their sources. The Washington Post Co. and other media organizations have lobbied for the bill, which would keep prosecutors from going after reporters as a first resort and provide journalists a qualified privilege not to divulge sources. That protection goes only so far: For example, where there is "a preponderance" of evidence that disclosure would "assist" in preventing a specific act of terrorism, reporters would be required to testify.

Critics charge that the federal shield law would hamstring` federal prosecutors and provide cover to those who aren't really journalists. U.S. Attorney Patrick J. Fitzgerald makes those arguments on the opposite page today. We disagree. Mr. Fitzgerald's examples of who could possibly be covered under the bill -- terrorists, child pornographers, gang members and spies -- are far-fetched. An amendment by Sen. Sam Brownback (R-Kan.) adopted last week makes it clear that foreign powers, agents of foreign powers, or entities that have been designated a terrorist organization by the departments of State or Treasury cannot be protected by this bill. And it's not reasonable to expect that a federal judge would offer protection to child pornographers and gang members. If another amendment is needed to make that point crystal clear as a matter of law, then let it be offered and let the committee pass it. And then let this bill become law.