The real beneficiary of a proposed federal law to protect journalists from being forced to reveal confidential information, except in limited circumstances, is the public - not the press.
There's a reason why the legislation pending in Congress - HR 985, S 448 - is called the Free Flow of Information Act. It's because protecting the ability of reporters to freely gather and report news protects the public's ability to obtain information.
The proposals for a reporter's "shield law" provide exceptions. For example, a reporter could be compelled to testify if a judge found the information was necessary to prevent an act of terrorism or "other significant and specified harm to national security."
Unfortunately, President Obama - who has expressed support for such a bill in the past - is backpedaling and trying to water down the protection. His changes would, in effect, substitute the judgment of the White House, rather than an impartial judge, in determining such things as what might harm national security.
This nation has seen too many examples of the executive branch hiding behind national security claims to protect themselves from embarrassment rather than to protect the interests of the country. Meaningful judicial review must remain part of the bill.
The White House also wants to gut a provision that calls for judges to balance the public interest in compelling disclosure with "the public interest in gathering news and maintaining the free flow of information."
A narrowly split Supreme Court decision in 1972 said the First Amendment itself does not provide journalists with a "privilege" - akin to a doctor-patient or attorney-client privilege - against forced testimony.
Since then, nearly every state, including Illinois, through statutes or court rulings, protects journalists from being compelled to testify about sources of information unless certain conditions are met. But there is no federal protection.
That's why New York Times reporter Judith Miller wound up spending 85 days in jail for refusing to reveal her source in the Valerie Plame case - yet that source, Lewis "Scooter" Libby, who was eventually convicted of obstruction of justice, didn't spend a day in jail. His 2½-year sentence was commuted by then President George W. Bush.
The use of confidential sources has been an important reporting tool -in many stories from the Watergate scandal and beyond. Only the ethical standards of reporters willing to go to prison rather than break a promise to a confidential source has prevented the silencing of sources who fear retaliation.
U.S. Rep. Mike Pence, R-Ind., said in a Washington Times commentary supporting a shield law, "As a conservative committed to limited government, I believe the only check on government power in real time is a free and independent press."
The Free Flow of Information Act should be approved without the changes proposed by Obama.
Posted in Editorial on Friday, October 9, 2009 12:00 am Updated: 6:41 pm.
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