May 27, 2007
Anonymous sources helped reveal criminal misconduct in the Nixon administration and the secret history of the Vietnam War. They helped uncover the Bush administration's surveillance of American citizens, and they supplied important information on CIA detention facilities in Eastern Europe. Closer to home, sources who spoke only after being promised anonymity helped reveal the incompetence of former Los Angeles Police Chief Willie Williams and the misdeeds of police officers in the Rampart scandal.
Those sources spoke despite danger to their livelihoods and freedom because reporters were able to grant them confidentiality — and because prosecutors and judges respected those promises. Yes, this occasionally thwarts the interests of prosecutors. Reporters have information, and prosecutors sometimes want it; if reporters protect their sources, they can inhibit a criminal inquiry. But the entire structure of American trial rights operates in the same way. Prosecutions also would be simpler if defendants were not entitled to lawyers or if police could search homes without warrants.
There are those who question why journalists should enjoy this special right not to cooperate with prosecutors. Yet society recognizes many such privileges: Conversations between doctors and patients are protected; so are those between priests and penitents, husbands and wives, lawyers and clients. All serve society's broader interests.
Shield laws are not new or novel — more than 30 states, including California, have shield laws or protect confidential sources through court decisions. Yet efforts to enact a federal law have foundered, partly on disputes over who should be covered in a changing media world.
Fortunately, the latest version of the bill before Congress would protect both traditional reporters and those who gather news for blogs or other electronic outlets, profitable or not. Unlike a previous version that limited protection to those who practice journalism "for financial gain or livelihood," this measure defines journalism broadly, but not so broadly that every teenager with a MySpace page could claim the privilege. Elastic rules would allow judges to assess each case on its merits. This bill should not be sidelined by a definitional debate.
The privilege envisioned by this bill would not be absolute. A judge could order a reporter to identify a source when "essential" information can't be obtained from other sources or when disclosure is necessary to prevent "imminent and actual harm" to national security or individual safety. Those are sensible compromises.
Journalism is easily maligned, but it is practiced by many brave and principled women and men whose work has helped a citizenry to shape its destiny. It has never been more vital than today, when this nation's leaders have assiduously insulated themselves from scrutiny. This is, after all, a president who has held just two solo news conferences this year, an administration that has instructed officials to deny Freedom of Information Act requests whenever legally possible, a Justice Department that has more readily issued subpoenas against reporters than any since the days of Richard Nixon.
Congress' endorsement of a shield law would be welcome news for the nation. And yet even as we ask for Congress' support, we feel obliged to add this: No matter what Congress concludes, it will not be the final arbiter of what journalists do. It is the Constitution and the commitment to an open society that endow this profession with its rights and obligations. Although a federal shield law would protect an important mission, lawmakers who debate this bill should not assume that they are gaining authority over the press. With or without a shield, reporters may choose conscience over the meddling of judges and prosecutors, and jail over disclosure. Fortunately for the country, many journalists remain prepared to make that choice.
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