The excesses of the CIA-leak investigation made clear the need for a federal shield law to protect reporters and their sources. Indeed, the need for such a law has been clear since 1972, when the Supreme Court upset a long-standing understanding that journalists were more or less immune from government investigations into their reporting.
Since then, federal prosecutors have successfully chipped away at that protection and, by one count, more than 40 reporters have been questioned about their sources and at least two have wound up in jail.
On Thursday the Senate Judiciary Committee takes up a bill, the Free Flow of Information Act, already passed by its House counterpart. The bill is an amalgam of measures, principally by Sens. Richard Lugar, R-Ind., and Arlen Specter, R-Pa., that offer useful and needed protections that, properly interpreted, would balance the competing needs of the courts for disclosure and the public for the free flow of information.
First Amendment purists would quarrel with the bill since they believe they already have blanket immunity under the Constitution and they resist any attempt by the government to define who is and who is not a journalist.
However, this bill does nothing that 49 states and the District of Columbia don’t do already with their own shield laws, and it basically codifies existing Justice Department guidelines.
There is an exemption for disclosure when there is an imminent threat to human life or national security. Otherwise, the government — or the plaintiff in a civil case — must prove that the information sought is vital to the resolution of a significant case; that the information can be obtained no other way and that there is a compelling public interest in its disclosure.
It is important to remember that this is not just a reporter’s bill; it also protects the people they talk to.
Given the Bush administration’s intent to remove as much information as possible from the public eye — all governments do so, but this one is worse than most — a federal shield law is needed more than ever.