A real need for a shield law

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.


  1. SEAL

    I have a real problem with the idea that information regarding a crime can be withheld on first ammendment grounds. Once a person, journalist or not, has information about a crime they become a witness and should not be excluded from testifying. Judith Miller is a classic example and I absolutely agree with what the court did in her case.

    If congress wants to enact legisation to address the problem, they should make it possible for those currently forced to “remain anonymous” due to the fear of retaliation etc. to come forward and disclose what they know.

    Yeah, I know there is already some sort of law about that but, obviously, it isn’t any good as was clearly demonstrated in the case of Bunny whatshername who publicaly called the administration on some of their theft. She was the head of the department and now her desk is in the basement and ahe has no oversight authority.

    Either enforce the damn law (if it exists) or write one that has to be enforced to protect informants of crime and wrong doing by officials. That is the problem. It isn’t a first ammendment issue.