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Patriot-News — A narrow definition is necessary to protect confidential sources

The Patriot-News, Harrisburg, Pa.
August 18, 2008

The clock is ticking for the 110th Congress to protect the whistle blowers who help journalists serve as watchdogs on the government.

This is the second consecutive Congress to consider a “Shield Law” to define na

The Patriot-News, Harrisburg, Pa.
August 18, 2008

The clock is ticking for the 110th Congress to protect the whistle blowers who help journalists serve as watchdogs on the government.

This is the second consecutive Congress to consider a “Shield Law” to define narrowly the circumstances under which a journalist can be compelled to reveal the identity of a confidential source. According to Pennsylvania's U.S. Sen. Arlen Specter, Majority Leader Harry Reid has held up action on the Free Flow of Information Act of 2007.

Specter, an ardent supporter of a shield law, had a similar bill ready for passage when he served as chairman of the Senate Judiciary Committee in the last Congress, but it never came to a final vote.

Critics contend that a shield law provides a special privilege to journal ists not enjoyed by ordinary citizens, who can be sub poenaed and com pelled to testify about confidential knowledge.

But, in fact, such a law shields ordinary citizens -- those who confidentially provide information to journalists -- from retaliation by employers or others who don't want the information to be made public.

All but one state has a shield law, either by statute or judicial precedent, but none protects journalists and sources in the federal judicial system.

Specter says the need for a federal shield law was underscored by news that cell phone records of New York Times and Washington Post reporters had been obtained without their knowledge by the FBI in connection with a terrorism investigation in Southeast Asia.

Those records might well have led investigators to reporters' confidential sources, but they just as well might have led to non-sources. Whom journalists call or talk to is not the business of the government, any more than any other citizen's private conversations.

If there is a compelling need -- for issues of national security or to deal with impending danger -- investigators should have to be able to demonstrate in court that the request for information from a journalist falls within the boundaries of the shield law. As a practical matter, with a shield law in place, most journalists likely would volunteer to disclose such information, knowing that their other sources would be protected.

Such celebrated cases as that of New York Times reporter Judith Miller, who went to jail for 85 days for declining to reveal who told her Valerie Plame Wilson worked for the CIA, serve to reinforce the notion that shield laws primarily benefit journalists. The truth is that journalists would never be able to get beyond a wall of press releases and “spin” without being able to assure confidentiality to those who know the real story. The press cannot function as the people's watchdog on their government if the government can identify and intimidate sources.

There has been enough vetting of this legislation. Congress needs to act promptly to assure the continued free flow of information.

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