A media ‘shield’

FIVE NEWS ORGANIZATIONS -- including the Los Angeles Times -- agreed last week to pay a total of $750,000 to Wen Ho Lee, a former nuclear scientist who was arrested in 1999 and jailed for nine months as part of an espionage investigation at the Los Alamos National Laboratory in New Mexico.

The payments, part of a negotiated settlement of Lee’s lawsuit accusing the U.S. government of leaking information to the media from his personnel files, mean that reporters for The Times and the other news organizations won’t be punished for declining to identify confidential sources.

Some free-press advocates expressed concern that the payments would encourage the subjects of other stories based on confidential sources to seek similar payments.

But that slippery slope can be avoided if Congress follows the example of two-thirds of the states (including California) and enacts a “shield law” providing limited but real protection to journalists’ confidential sources.

The Senate and the House are considering different versions of the Free Flow of Information Act. Both bills would require that journalists be questioned about confidential sources only after investigators or other parties have exhausted attempts to obtain the information elsewhere -- a codification of current Justice Department guidelines.

Equally important, both bills also would allow judges to weigh the reporter’s privilege against the importance of the government’s interest in breaching confidentiality. The Senate bill eloquently emphasizes that two public interests must be balanced: “the public interest in compelling disclosure and the public interest in news gathering and maintaining a free flow of information to citizens.”

Where the bills differ is in the definition of those who could assert the confidentiality privilege.

The Senate bill, supported by Judiciary Committee Chairman Sen. Arlen Specter (R-Pa.), defines a journalist as someone who “for financial gain or livelihood” reports, writes or takes photographs for a newspaper, book publisher, radio or television network or “Internet news service.”

The House bill extends the privilege to anyone who “publishes a newspaper, book, magazine or other periodical in print or electronic form” -- a formulation that is friendlier to bloggers and student journalists but is too sweeping for some members of Congress.

We favor this broader approach, but not to the point of blocking legislation that could bring federal protections at least in line with those offered by California and states with similar laws.

The California law, which is part of the state Constitution, protects “a publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed.” (Recently a state appeals court extended the law’s protection to online news services as well.)

The day may come when Congress or the states will provide greater legal protection for bloggers and “nonprofessional” journalists. For now, the priority is to make federal law at least as protective of traditional journalists’ confidential sources as the laws of most of the states