Shielding journalists in the Internet era

‘With all that can be said, justly, against journalists,” W.H. Auden wrote in his 1970 book, “A Certain World,” “there is one kind of journalist to whom civilization owes a very great debt, namely the brave and honest reporter who unearths and makes public unpleasant facts, cases of injustice, cruelty, corruption, which the authorities would like to keep hidden, and which even the average reader would prefer not to be compelled to think about.”

FOR THE RECORD:
Shield law: A Dec. 31 editorial gave the wrong date for a Supreme Court ruling that journalists do not have a 1st Amendment right to protect confidential sources. The decision was in 1972, not 1973. —

So important is the sort of journalism Auden celebrated that two-thirds of the states, including California, offer at least some protection for the confidentiality of news sources. Belatedly, the federal government is poised to join them. But a bill heading to the Senate floor -- like a version already approved by the House -- adopts a definition of journalist that is far too narrowfor the Internet era.

Readers don’t like news reports that depend on sources who refuse to be named. Neither do editors, which is why newspapers such as The Times endeavor to identify sources and their possible biases. But in some cases a pledge of confidentiality is the only way a reporter can obtain information whose publication is in the public interest, whether it is the Pentagon Papers or revelations of spying on political leaders by the Los Angeles Police Department.

In 1973, the Supreme Court unwisely ruled 5 to 4 that the 1st Amendment doesn’t protect journalists from having to disclose their sources to a grand jury. (Justice Lewis F. Powell filed a confusing concurrence saying that “courts will be available to newsmen under circumstances where legitimate 1st Amendment interests require protection.”) That decision, however, doesn’t affect legislation to shield confidential sources. For a generation, no such protection has been available in federal court, although the Justice Department has followed a policy of trying to obtain information elsewhere before asking journalists to compromise their sources. Resistance to a federal shield law stiffened in the George W. Bush administration, which argued that a shield law would make it harder to pursue terrorists.

Despite some initial hedging, the Obama administration has embraced the idea of shield legislation, while insisting on concessions -- some of them excessive -- to law enforcement. The result in both the Senate and House bills is a qualified privilege that would allow journalists to protect sources and documents unless identifying them was necessary to save lives, protect children from abuse or prevent a criminal prosecution from collapsing. Even then, in most cases a judge would be obliged to weigh the public interest in gathering or disseminating news against the public interest in compelling disclosure.

There is one area in which both bills need to be strengthened in an eventual conference committee. The bill considered by the Senate Judiciary Committee limited protection to “a person who is engaged in journalism.” As amended by the panel, the definition of a “covered person” is someone who writes or reports for the print media and cable or broadcast news services. There is a reference to the “electronic” delivery of news, but online journalists understandably complain that they aren’t explicitly protected. They have a similar grievance with the House bill, which defines a covered person as someone for whom journalism represents “a substantial portion of the person’s livelihood” or produces “substantial financial gain.”

Obviously not everyone who commits thoughts to cyberspace is a journalist in the sense intended by Auden. A shield law shouldn’t protect libelous gossip on a teenager’s MySpace page. But in the Internet era, not every public-spirited journalist works for a traditional newspaper or broadcast operation, and some don’t work at all in the sense of receiving a regular paycheck. The final version of this overdue law should reflect that reality.