Connecticut Post – Senate should pass shield law

• By: ASNE staff
• On: 11/07/2007 10:16:03
• In: Shield law editorials

Connecticut Post, Bridgeport
Sept. 22, 2007

The United States Senate is supposed to vote on the "Free Flow of Information Act" this week. Better known as a reporter's shield law, the House of Representatives has already passed its version. The Senate should do the same.

Connecticut joined 32 other states last year in establishing a state shield law, protecting reporters from divulging their anonymous sources. Thirty-four state attorneys generals have expressed concern to the U.S. Supreme Court that the lack of a clear standard of federal protection undermines state law.

It's time for Congress to make it a federal law. Sen. Christopher J. Dodd, D-Conn., was an original sponsor of the bipartisan legislation with Sen. Richard Lugar, Republican of Indiana. Republican Arlen Specter of Pennsylvania and Democrat Charles Schumer of New York have worked on a compromise bill with Dodd's and Lugar's support. It waters down the original bill, but is still acceptable to press organizations, which have been pushing the law for years. It will not provide an absolute privilege to keep sources confidential. The bill states that identity can be compelled if disclosure is necessary to prevent "a specific case of terrorism against the United States or significant harm to national security that outweighs the public interest in newsgathering and maintaining a free flow of information to citizens." There is only a qualified privilege for leaks of properly classified information.

Journalists also have no privilege where someone's life or the prevention of bodily harm depends on the reporters' confidential source information. Reporters are being subpoenaed and going to jail for refusing to identify their sources at an alarming rate. Ideally it would be better if journalists were not at the mercy of state or federal legislators for their protection of sources. What a legislature grants a legislature can take away. The First Amendment guarantee of a free press should be sufficient to protect reporters. Unless a reporter "has a privilege to withhold the identity of his source, he will be the victim of government intrigue or aggression ... his sources will dry up and ... the effort to enlighten the public will end," wrote Supreme Court Justice William O. Douglas in 1972. However, Justice Douglas was writing in the minority while the majority ruled then that the First Amendment does not guarantee that reporters can protect their sources. Other justices joined him in the minority stating, "The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society."

But until the High Court recognizes the importance of protecting sources, just as lawyers have confidentiality with clients, we will have to rely on legislatures to pass laws protecting journalists doing their jobs. Sen. Dodd recognizes that this federal shield law would provide important and balanced ground rules for when the confidential relationship between reporters and their sources can be protected.