Daily News — Time is now for a federal shield law

• By: ASNE staff
• On: 08/27/2010 10:23:00
• In: Shield law editorials

The Daily News, Longview, Wash.
August 25, 2010

Legislation giving reporters a qualified privilege to withhold the names of confidential sources has been approved by the full House and Senate Judiciary Committee. Long-time advocates of a federal shield law believe this could be the year that Congress finally musters the necessary votes for passage.

If the aptly named Free Flow of Information Act can be brought to the Senate floor for a vote before the end of session, it would likely pass and be signed into law by President Obama. But with the legislative clock rapidly ticking down once Congress returns next month from its August recess, this legislation could easily fall victim to a short election-year calendar, as an earlier effort did in 2008.

That would be a shame, and not just for working journalists. Everyone benefits when honest citizens can come forward to expose government wrongdoing without fear of retaliation. Giving reporters some measure of statutory protection against being forced to reveal confidential sources is important to the promotion of open government. Without the expectation of confidentiality, a great many would-be whistle blowers would hesitate to reveal government incompetence or wrongdoing.

Washington state lawmakers have recognized the need for a limited reporter privilege. The Legislature enacted a shield law in 2007 that gives reporters strong protection in state courts, much like that given privileged communications between attorneys and their clients or married couples. But state laws have no real force in federal courts.

What's needed is a federal law that provides some uniformity to the patchwork of state laws. The need has become somewhat urgent in recent years. Up until about seven years ago, federal courts had been sympathetic with a reporter's need to protect the identities of confidential sources, drawing guidance from a separate opinion by the late Supreme Court Justice Lewis Powell in a 1972 case. Powell's words were generally interpreted as a partial recognition of reporter privilege. That changed in 2003, when a federal judge ruled that there was no reporter privilege, qualified or otherwise.

Since that ruling, federal prosecutors have questioned hundreds, if not thousands, of reporters about their confidential sources. Some have been hauled into court and threatened with jail time for refusing to divulge sources. In 2005, New York Times reporter Judith Miller was locked up for almost three months when she refused to identify a confidential source.

The bill pending in the Senate, S. 448, does not grant reporters anything approaching absolute privilege. Reporters would have to disclose their sources if the court determined that the information came from criminal conduct or from observing criminal conduct. Reporters would have to disclose information deemed material to preventing, mitigating or identifying an act of terrorism. And reporters would have to disclose information necessary to stop, prevent or mitigate a specific case of death, kidnapping or substantial bodily harm.

Some critics contend that the exceptions are too plentiful, dangerously compromising the law. In our view, the compromises were a political necessity and, for the most part, sensible. The proposed shield law would provide significant protection and a much needed national standard to guide the courts. The Senate should waste no time moving S. 448 to the floor for debate and vote when it reconvenes Sept. 7.