An acceptable compromise has been reached in an effort to provide journalists some federal protection from having to disclose confidential sources. The new language was hammered out between the Obama administration and Sens. Charles Schumer, D-N.Y., and Arlen Specter, D-Pa. It would resolve an ongoing stalemate between the bill's sponsors and the administration regarding the strength of the protections reporters would enjoy. While some Republicans on the Senate Judiciary Committee are poised to question the agreement next week, it strikes an acceptable balance and should be approved by the Senate.
To unearth stories on everything from appalling medical conditions at Walter Reed Army Medical Center to black site CIA prisons, reporters have needed to promise their sources anonymity. The public interest served by this kind of investigative reporting is so strong that about three dozen states, including Florida, have shield laws for journalists. But there are no similar protections in federal law.
President Barack Obama had been a supporter of a strong federal shield law as a senator, but he unfortunately pulled his support for the Free Flow of Information Act after hearing concerns from his national security officials. The issue was a balancing test that Obama didn't think was sufficiently government-friendly. It left to federal judges the job of weighing the public's right to be informed versus national security concerns in order to determine whether a journalist could be forced to disclose his or her confidential sources. The Senate compromise tilts the scales in favor of the government in particular cases.
Under the compromise, there would be no protection for reporters ordered to release the identity of a terrorist. Judges also could not quash a subpoena in cases where the information sought by prosecutors would prevent or mitigate a future terror attack or an act that would likely cause significant harm to national security.
Prosecutors seeking information in more run-of-the-mill criminal cases, including those involving classified leaks, would have an advantage, too. The balancing test would put the burden on the reporter to demonstrate that the public interest in the free flow of information clearly and convincingly outweighs the prosecutor's needs. In civil cases, however, the lawyer seeking the information would have the over-arching burden.
The Senate Judiciary Committee is expected to question Attorney General Eric Holder about the compromise language on Wednesday. The legislative process often delivers less than perfect but acceptable results, and this is one of those cases. The substitute language is not as protective of journalists' confidential sources as the bill passed months ago by the House, but it is a significantly better than having no federal shield law at all.