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Pass the federal shield law

Long accustomed to serving as the public's watchdog, journalists are loath to ask legislators for anything - particularly regarding their own First Amendment rights. But journalists from some of the country's best news organizations faced a Senate committee Wednesday to make the case for a federal shield law that would prevent the courts from forcing reporters to identify confidential sources. Such protections are essential for the media to effectively check government power in a democracy.

Journalists joined a bipartisan lineup of legislators appearing before the Senate Judiciary Committee, pressing for a law giving reporters the ability to protect the confidentiality of anonymous sources. But opposition from the Justice Department, the crush of more pressing issues on Capitol Hill and haggling over details may stall the legislation. That would leave journalists vulnerable and the public less informed about government wrongdoing.

The issue gained traction in Congress after New York Times reporter Judith Miller was jailed for refusing to reveal her sources for a story she never wrote about the outing of a CIA agent by administration officials. Forty-nine states have their own shield laws or legal protections for journalists, but those state laws do not protect journalists from federal prosecutors and grand juries.

Some senators expressed concern that journalists could get too much protection, and U.S. Deputy Attorney General James Comey Jr. provided written testimony to the Senate Judiciary Committee calling the proposed law "bad public policy" that could harm government efforts to combat terrorism.

Lawmakers have revised the legislation to include an exception for source disclosures "necessary to prevent imminent and actual harm to national security," along with questionable provisions exempting special prosecutors and civil cases in specific circumstances. But there is no indication whether such changes will overcome the administration's concerns.

While the CIA leak case and mistaken reporting about nuclear scientist Wen Ho Lee have taken a toll on the credibility of news organizations, anonymous sources were critical to stories exposing government and corporate wrongdoing, from the Pentagon Papers to the Enron accounting scandal, from the Watergate coverup to the Iran-Contra scandal.

We have urged Congress to pass a federal shield law with reasonable exemptions in matters involving legitimate national security issues. Legislation also need not shield journalists who have directly witnessed a crime - provided there is language forcing courts to prove the information is essential to the case at hand and cannot be obtained another way. But a federal shield law is needed in an era when judges are increasingly inclined to support efforts of lawyers and prosecutors to force reporters to disclose their sources. Journalists can no longer reliably count on First Amendment interpretations by federal judges for reasonable protection.

Congress should not allow this legislation to get lost amid other priorities, and the Bush administration should find the latest compromises acceptable. There is a vital public interest in maintaining a vigorous and free press, and a federal shield law would help ensure that journalists do not become investigative arms for lawyers and prosecutors.

[Last modified July 23, 2005, 00:19:01]