After some unsettling equivocation, the Obama administration has embraced a Senate bill that would offer limited protections to reporters who have promised confidentiality to their sources. The compromise reached by the administration and members of the Senate Judiciary Committee is imperfect, but it brings a federal “shield law” closer to enactment than at any time in recent history.
The Times and other major news organizations would prefer that every source for a news story be identified. But whether the subject is the Los Angeles Police Department’s past spying on political leaders or the rendition of suspected terrorists to “black sites” abroad, some vital reporting is possible only if sources are promised anonymity. Without it, they won’t share information with the media.
That’s why two-thirds of states have enacted shield laws, including California, where protection of confidential sources is guaranteed by the Constitution. Unfortunately, no similar protection exists in the federal courts, thanks to an unwise 1972 decision in which the Supreme Court, by a 5-4 vote, held that the 1st Amendment did not protect journalists from having to disclose their sources to a grand jury.
Since then, news organizations have pressed Congress to protect confidential sources in the federal courts, but the initiative has encountered resistance from law enforcement agencies. The wariness increased after 9/11. Although Obama endorsed a shield law in his presidential campaign, Atty. Gen. Eric H. Holder Jr. has insisted that any law must leave him able “to protect the national security and to prosecute any leaks of intelligence.”
A bill passed by the House in March would allow a judge to order a journalist to divulge a source if disclosure was necessary to “prevent, or identify the perpetrator of, any act of terrorism.” That, however, wasn’t enough for the administration. Now Holder and Dennis C. Blair, Obama’s director of national intelligence, have agreed to support amendments by Sens. Charles E. Schumer (D-N.Y.) and Arlen Specter (D-Pa.) that would strengthen the government’s hand. A judge could order disclosure of a source if it “would materially assist the government in preventing, mitigating or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security.”
The Senate bill’s language is too broad, and we hope that the conference committee that ultimately melds the two will adopt the House version. But as a practical matter, judges are likely to side with the government under either standard if they are convinced that disclosure of a source’s identity is necessary to protect national security. The long-overdue enactment of a shield law shouldn’t be held hostage to disagreements over what might not prove to be a significant difference.