“This is not about protecting reporters. It's about protecting the public's right to know.”
U.S. Rep. Mike Pence, R-Ind., learned firsthand the need for a federal shield law protecting journalists against having to reveal their sources. And so, earlier this month, the former radio broadcaster was one of a bipartisan roster of senators and representatives who introduced the Free Flow of Information Act.
In a democracy such as ours, the free flow of information is crucial if journalists are to fulfill their responsibility to keep public the public's business. Compelling reporters and editors to testify, and in particular, to reveal the identity of a confidential source, restricts that flow of information - and ultimately leaves the public, and our democracy, without the insight needed on matters of considerable public interest.
So how important are confidential sources? Just this year, stories on the inadequate care given Iraq war veterans at Walter Reed Army Medical Center would not have been possible without confidential sources. So, too, did such sources provide the initial accounts of abuses at Abu Ghraib prison, and of baseball steroid abuse. Most famously, a confidential source was the foundation for Bob Woodward and Carl Bernstein's reporting on the Watergate break-in and subsequent coverup.
On the local level, confidential sources are essential to every reporter's work, every day.
All but one state - Wyoming - has some form of protection for journalists. Montana's shield law, in fact, is one of the nation's finest.
But those laws do not apply to federal court, or to criminal or civil cases brought before those courts. And while it was once relatively uncommon for the Justice Department to issue subpoenas to journalists, the Bush administration has issued 65 such subpoenas in recent years.
The lack of a federal standard also invites abuse, as in the case of a freelance journalist who videotaped a small anti-globalization rally in San Francisco in July 2005. When local law enforcement demanded a copy of Josh Wolf's videotape, he refused - and was protected under the state of California's shield law.
Undeterred, police filed a complaint through the federal courts, where Wolf had no protection, and he went to jail - for 226 days - rather than surrender the videotape of the rally.
So what would the Free Flow of Information Act do?
Provide journalists with a qualified privilege as to sources and information. The bill would, however, require reporters and editors to testify at the request of criminal prosecutors, criminal defendants and civil litigants who have shown by a preponderance of evidence that they have met the various tests for compelled disclosure. Establish that a confidential source's identity can be compelled only if disclosure is necessary to prevent “imminent and actual harm” to national security, to prevent “imminent death or significant bodily harm” or to identify a person who has disclosed significant trade secrets or certain financial or medical information in violation of current law. Protect information that may reveal journalists' confidential sources when that information is held by telephone companies, Internet service providers and other communications providers. Define “journalist.” With a nod to the Internet and its “citizen journalists,” the act would create a broad definition of what constitutes a journalist, including bloggers and anyone gathering information for public distribution.Confidentiality is an essential tool in a reporter's newsgathering kit - one pulled out for some of the most sensitive, and significant, stories. It is the promise of confidentiality that gives courage to whistleblowers and other sources who have evidence of wrongdoing, but who risk all by coming forward.
By adopting the Free Flow of Information Act, Congress will establish important and balanced ground rules for compelled disclosure of sources and information from journalists - and in doing so, protect the very foundation of our democracy, the public's right to know.
Without a federal shield law, our Constitution's guarantee of “freedom of speech, or of the press” is diminished, as is the vigorous journalism it was intended to protect. Rep. Pence spoke for us all in introducing the act earlier this month. “It is time,” he said, “to repair this tear in the First Amendment.”
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