Toward a Federal Shield Law

When the subject of a journalists’ shield law comes up in Congress, as it has this week, the issue is often framed as an attempt by reporters to give themselves special privileges to the detriment of criminal investigations and even national security.
A shield law does protect journalists. But the real benefit for society is that it protects sources, allowing whistle-blowers or other insiders to expose wrongdoing in government and the private sector. The information they provide is vital to the public’s ability to know what government and businesses are doing and to make informed judgments.
Yesterday, six members of Congress introduced a new, balanced and bipartisan bill that would allow a reporter to protect the identity of a confidential source in most circumstances. The measure, the Free Flow of Information Act of 2007, is supported by dozens of media companies.
It is not a blank check. The bill would set reasonable criteria that would have to be met before unpublished information could be subpoenaed from reporters in a federal criminal or civil matter. Prosecutors would have to show that they had exhausted alternative sources before demanding information. They would need to show that the sought-after material was relevant and critical to proving a case, and that the public interest in requiring disclosure would outweigh the public interest in news gathering. The bill has strong protections for confidential sources but would permit disclosure to avoid “imminent and actual harm” to national security.
The only thing a federal shield law would threaten is the administration’s ability to make policy in secret. This measure of protection is long overdue.