Let's get this out of the way at the top: The proposed federal privilege for journalists to protect confidential sources isn't for the reporters' benefit. It's for you. There's a reason the sponsors of the proposed federal shield law call it the "Free Flow of Information Act." The bill has wide bipartisan support in Congress precisely because it will keep truthful, independently gathered information flowing to you.
I hope you use that information to make informed choices about who is going to represent you in your government and to determine when your tax dollars are being wasted or stolen. Most important, I hope you use it to decide whether those whom you have trusted to represent you are acting in the best interests of all Americans.
Whistle-blowers. Nearly 30 years as a journalist and media lawyer have taught me this: Stories of great public importance will sometimes be reported only if a journalist promises anonymity to a source. For every government official who spins reporters for political gain, there are dozens who believe that, if identified, they will face retaliation for telling the truth. And thanks to such whistle-blowers, we have learned about abuses at Abu Ghraib, mistreatment of injured soldiers at Walter Reed Army Medical Center, widespread use of steroids in professional baseball, and illegal special operations training in Pakistan and Indonesia conducted by U.S. Special Forces, as well as about the massacres at My Lai and Srebrenica, Bosnia.
Media companies, journalism organizations, and reporters have negotiated with opponents for nearly four years to pass a bill that will safeguard both the public's right to receive information and the need to protect national security. Though the director of national intelligence, the U.S. attorney general, and the secretary of homeland security have stirred up opposition by scaring legislators and the public with stern predictions of catastrophic national security breaches, the House of Representatives passed a shield law in October by a stunning 398-to-21 margin. Now partisan wrangling over energy policy is keeping the Senate from voting on its version of the bill.
And while critics warn that the legislation could jeopardize our country's safety, in most cases a prosecutor's uttering "national security" to a judge would result in a reporter being compelled to testify. In my experience, subpoenas for confidential sources for stories involving national security make up only a very small percentage of subpoenas served in the federal courts—but they're the "sexiest" cases, so you hear about them more often.
The Reporters Committee for Freedom of the Press was founded on the reporters' privilege issue in 1970, when state and federal governments were issuing hundreds of subpoenas to reporters for sources and eyewitness testimony for criminal cases about the controversial events and issues of the day, including Vietnam War protests and drug trafficking.
Since that time, the number of states with protections for reporters and sources has steadily increased: Today, 49 states and the District of Columbia provide such a privilege by statute, court rule, or court decision. In fact, the attorneys general of 40 states sent a letter to the U.S. Senate in June urging it to pass the proposed shield law bill.
As the chief legal officers of their states, those attorneys general have significant experience with the state-law privileges. "[T]hat experience demonstrates that recognition of such a privilege does not unduly impair the task of law enforcement or unnecessarily interfere with the truth-seeking function of the courts," they wrote. The differences between state laws and the virtually nonexistent protections in the federal system lead to "inconsistency and uncertainty for reporters and the confidential sources upon whom they rely," they pointed out.
The state attorneys general are right. It's time to afford similar protections to reporters and their sources in the federal courts.
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