There is new hope that the federal government will soon join 49 states in giving reporters some protections from having to reveal their confidential sources. A bipartisan group in Congress has tried for years to pass a federal shield law that would balance the interests of a free press with a fair administration of justice. This year it may succeed.
The House showed overwhelming bipartisan support last year for the Free Flow of Information Act. But a Republican filibuster stalled it in the Senate. But even if the measure passed, then-Attorney General Michael Mukasey was opposed and a presidential veto was likely. This year, prospects have markedly improved. The act was reintroduced in February and has passed the House. The Senate Judiciary Committee is set to consider it this week. President Barack Obama and Attorney General Eric Holder are on record in support of some sort of federal reporters' shield, and there are now more Democrats in the Senate to help defeat any potential filibuster.
The bill provides a vital way to undergird the constitutional right of freedom of the press by giving journalists some ability to fight subpoenas that demand documents or testimony on confidential sources.
Whistle-blowers, who are essential to exposing government or industrial corruption or wrongdoing, often will only cooperate with a reporter if their identity is protected. As a result, numerous journalists have faced threats of jail and fines for refusing to disclose sources. Such consequences curb sources' willingness to come forward and reporters' willingness to offer confidentiality.
The media shield under consideration by Congress would not give journalists an absolute right to ignore a subpoena. Instead, the measure provides a set of criteria ensuring that a reporter's notebook isn't the first place a federal prosecutor or civil lawyer goes for information. In addition, they would have to show that the information is essential to their case, and that the public interest in disclosure is greater than it is in news-gathering.
Critics of the bill most often claim that it doesn't sufficiently protect national security, but it actually does so in a variety of ways. The act requires disclosure to prevent an act of terrorism against the United States or to prevent imminent death or significant bodily harm. And no member of a designated foreign terrorist organization could claim protections under the privilege.
Federal courts could also compel disclosure if needed to identify a person who has harmed national security by leaking properly classified information.
There is a reason that every state but Wyoming has adopted, either by statute or court ruling, a journalists' shield. It is recognized as essential to the working of a vibrant and muscular free press and one of the best ways to encourage the exposure of wrongful acts.