The three major candidates for president now agree that Congress should pass a law allowing reporters to protect their confidential sources. Unfortunately, the current occupant of the White House still resists such legislation, which is why the Senate needs to follow the House in approving the Free Flow of Information Act by a veto-proof margin.
That prospect was enhanced last month when Sen. John McCain (R-Ariz.) told newspaper editors that, like Sens. Barack Obama (D-Ill.) and Hillary Rodham Clinton (D-N.Y.), he supports a shield law. McCain said such a law “is, frankly, a license to do harm, perhaps serious harm. But it’s also a license to do good, to disclose injustice and unlawfulness and inequities and to encourage their swift correction.”
It is the public, not the news media, that ultimately benefits most from the sort of aggressive journalism that sometimes requires pledges of confidentiality. That’s why both the House and Senate versions of the bill empower judges to determine if “the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”
In addition to that general balancing test, the legislation allows judges to order reporters to name sources if the identities are needed to prevent significant harm to national security. Even so, Atty. Gen. Michael B. Mukasey and Director of National Intelligence J. Michael McConnell object to the legislation on the grounds (where have we heard this before?) that it allows judges to intrude in matters of national security.
Not all of the opposition comes from the administration. Some journalists worry that reliance on a shield statute undermines the argument that the 1st Amendment protects confidential sources (a conclusion the Supreme Court unfortunately has yet to embrace). And some bloggers object to language in the House bill defining a “covered person” as someone who gathers news for “substantial financial gain.” Defining “journalists” in this day and age is not simple, and no law will cover every imaginable iteration. But that difficulty is no excuse for inaction.
The attorney general and the courts have weighed in. So has the House, which passed the bill by more than enough votes to overcome President Bush’s threatened veto. The Senate may be gridlocked by presidential proxy battles, but an election year is precisely when politicians must be required to take a stand. Senate Majority Leader Harry Reid should not delay in scheduling the bill for a vote.
Even without added protections, dedicated journalists will protect their sources. But a federal shield law -- like those already on the books in most states -- would reinforce the need for investigative journalism in a democratic society and protect reporters who undertake it. The stories they write will benefit the nation.