In search of a shield

October 15, 2007

After years of trying, Congress is moving toward enacting a shield law to protect journalists from being compelled to reveal confidential sources and information to federal prosecutors. We applaud the effort; it's long overdue.

As a news organization, we believe reporters must be able to follow their leads wherever they go without fear that their notes will become court evidence or that reluctant sources to whom they promise anonymity will face retribution for their help. We believe unfettered newsgathering is a fundamental element of First Amendment rights.

Alas, federal courts have upended what had been general acceptance of at least a qualified reporters' privilege. And the Bush administration has been increasingly trying to turn reporters into government gumshoes by demanding their investigative material.

Thus the only recourse is statutory protection from Congress, which is subject to the horse-trading and compromise necessary to pass any legislation. Some trade-offs have been necessary, but the legislation remains a vast improvement over the current legal status of reporters in federal courts, where they have no protection whatsoever.

Neither the House bill scheduled to come up for a floor vote tomorrow nor the version approved by the Senate Judiciary Committee this month would shield reporters with absolute privilege to protect sources and information, as do the laws of some states. Maryland grants such an absolute privilege to protect sources but limits circumstances for withholding information.

In this post-9/11 world, though, the bipartisan group of lawmakers backing the shield law felt compelled to guarantee that reporters wouldn't abuse their privilege to protect terrorists or those intent on otherwise threatening human life. Reporters also would be required to reveal the sources of leaks of trade secrets, identifiable health information or personal financial information.

Also difficult has been defining who qualifies these days as a journalist. Both bills are likely to require that reporters earn most of their living at newsgathering. The Senate bill also includes a long list of those who are not journalists, including "agents of a foreign power." The House bill excludes anyone on a terrorist watch list.

Groundbreaking stories with the greatest impact are always going to require dogged reporters; courageous, often selfless, sources; and news organizations willing to withstand all manner of intimidation and excoriation. Risk is a given. Yet formal protection of the vital role journalists play in keeping a free society free would make a hard job easier.

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