It is possible that, for the first time in this nation's history, journalists will gain the protection of a federal shield law that will protect journalists and their sources. But it would do more than that: It would protect all Americans.
Former radio broadcaster Rep. Mike Pence (R-Ind.), who has fought this good fight before, is co-sponsoring the House bill along with Rep. Rick Boucher (D-Va.). In the Senate, Richard Lugar (R-Ind.) and Chris Dodd (D-Conn.) last week introduced their essentially identical bill.
We liked the imagery Pence used when he said a federal shield law would help repair a “tear in the First Amendment.”
Indeed, in more than 30 states, there is some variation of a shield law or court cases establishing privilege, but there is no similar protection from zealous federal prosecutors. More than 100 bills have been proposed since the 1970s without success. This time, the shield law might pass, even though the Bush Administration, as recently as a year ago, said such a law could pose a threat to national security.
That isn't true, but the new bills make sure that dog won't hunt. They extend broader protection to reporters (and online bloggers) from being compelled to testify or name sources. However, there are significant exceptions. Reporters would not be shielded if there is “imminent and actual” danger to national security or personal safety, nor where leaking the information violates existing laws regarding trade secrets or health information. But in all cases, a judge would weigh the “public interest in compelling disclosure” of sources against “the public interest in gathering news and maintaining free flow of information.”
The bills have bipartisan backing and a sense of urgency fueled by the federal government's increasing use of subpoenas and the threat of jail time in an effort to turn journalists into agents of the Justice Department.
The government sometimes makes it difficult to recognize the country we celebrate in history books. According to an ACLU report, in 2005, the U.S. was tied for sixth place (with Burma) among the top 10 countries that jailed uncooperative journalists. That's frightening.
For example, Lucy Dalglish, from the Reporters Committee for Freedom of the Press, notes that the Justice Department has issued subpoenas to The Washington Post demanding e-mail, reporters' notes and phone records concerning coverage of the anthrax scare after the 9/11 attacks.
Pence has even made it easy for legislators who don't particularly like journalists to support the bill. “The Free Flow of Information Act is not about protecting reporters,” he said last week. “It is about protecting the public's right to know.”