Because of the impending election, expectations are low that Congress will take action on any controversial legislation when it returns to work after Labor Day. That could increase the chances for enactment of an important reform that has been endorsed by both Barack Obama and John McCain: a federal "shield law" that would make it easier for journalists to protect confidential sources.
No one in or out of newsrooms likes stories that are based on unnamed sources. At The Times, as at other newspapers, every effort is made to persuade sources to be identified and be quoted for the record. But sometimes the price of important information is an assurance of confidentiality for a source. That was the case with Watergate, the exposure by the New York Times of the Bush administration's eavesdropping on Americans without a court order, and countless state and local investigative reports.
The value of protecting sources long has been evident to state governments. But Congress has balked at requiring federal courts to follow suit. Legislation is required because of a misguided 1972 Supreme Court decision in which the justices ruled 5 to 4 that the 1st Amendment does not provide protection for sources. That ruling hasn't kept journalists from honoring their pledges of confidentiality; it has forced them to spend time in lawyers' offices and sometimes behind bars rather than concentrating on their work.
That would change with the enactment of the Free Flow of Information Act. It would require that federal courts join 33 states and the District of Columbia in recognizing the right of journalists to protect confidential sources. The bipartisan legislation passed the House overwhelmingly last year, and if put to a vote, it likely would pass the Senate. But action in that body was forestalled last month when sponsors failed to amass the 60 votes needed to move it forward.
In both its House and Senate versions, the bill grants a limited privilege to journalists, allowing courts to demand disclosure of a source when necessary to protect national security or to provide information essential to a criminal case. Its most important improvement over current law is a provision under which a judge would have to balance the argument for disclosure against "the interest in gathering and disseminating the information or news conveyed and maintaining the free flow of information."
Controversy continues about side issues, such as whether the bill should protect bloggers, student journalists and those not engaged in reporting for financial gain. The Bush administration, meanwhile, continues to raise its own objections, including the notion that terrorists might create media outlets to take advantage of the law. But those questions cannot be resolved by a conference committee until the Senate approves its version of the legislation. Majority Leader Harry Reid (D-Nev.) needs to move the shield law to the top of the Senate's agenda.