A shield for all

Today, the House is expected to vote on a proposal that Speaker Nancy Pelosi rightly calls “fundamental to our democracy and fundamental to the security of our country.” The Free Flow of Information Act of 2007 would require that federal courts join 33 states and the District of Columbia in recognizing the right of journalists to protect confidential sources.

Contrary to what critics claim, this proposed “shield law” isn’t a concession to special pleading by the news media. Its ultimate beneficiary is the public. Without confidential sources, the American people wouldn’t have known about misconduct in the Nixon administration, the secret history of the war in Vietnam or excesses in the war on terror such as the wiretapping of Americans by the National Security Agency. Locally, the historic abuses of the LAPD -- from spying on its enemies to its destructive use of force against minorities -- came to public light because sources shared facts with reporters who kept their identities secret.

Journalists will promise confidentiality even without a federal shield law. They -- we -- believe that protection for sources is not only a vocational imperative but a logical consequence of the freedom of the press guaranteed by the 1st Amendment. The question isn’t whether dedicated reporters will protect their sources, it’s whether they will devote time better spent on reporting the news closeted with grand juries or sitting in jail.

The bill proposed by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) does not give blanket immunity. The privilege wouldn’t be recognized in cases in which disclosure was necessary to prevent an act of terrorism, when identifying a source was “critical” to resolving a criminal case or when disclosure was necessary to identify someone who divulged trade secrets or medical records protected by federal law. Most important, the bill would instruct federal judges that the privilege should give way only if “the public interest in compelling disclosure of the information involved outweighs the public interest in gathering or disseminating news or information.” Judges too often have given short shrift to the public interest in news gathering, making such guidance critical.

In August, for example, a federal judge ruled that journalists must disclose who told them that former government scientist Steven Hatfill was being investigated in connection with anthrax attacks that killed five people in 2001. A similar suit by Wen Ho Lee, who was arrested in 1999 as part of an espionage investigation at the Los Alamos National Laboratory, was settled last year after the government and five news organizations -- including The Times -- agreed to pay Lee $1.65 million.

Even if the shield bill passes the House, its ultimate enactment is threatened by critics who think it goes too far and others who think it doesn’t go far enough. The first group includes Bush administration lawyers who have argued, unpersuasively, that Justice Department guidelines already provide adequate protection for confidential sources. The second group is made up of bloggers who object to an amendment limiting the definition of “journalist” to those who practice the trade “for financial gain or livelihood.”

We too would prefer a broader definition, such as the one in shield legislation approved by the Senate Judiciary Committee that covers any “person who is engaged in journalism.” But the first order of business is to make the federal government at least as protective of a reporter’s privilege as are states that have passed shield laws. That calls for a “yes” vote today -- preferably by a veto-proof margin.