The moment of truth has come for the Free Flow of Information Act. After passing the House with a veto-proof majority this month, the bill that would extend protection of the relationship between journalists and their sources to the federal level awaits a decision on a course of action from Senate Majority Leader Harry Reid, D-Nev. Judiciary Committee Chairman Patrick Leahy, D-Vt., has placed two options on the Senate calendar for Reid's consideration; He needs to pick one.
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The House bill that passed 398 to 21 would compel the disclosure of sources in federal court only to prevent bodily harm or death, to identify a person who unlawfully revealed a business trade secret or "nonpublic personal information," or to prevent a terrorist attack on the United States or harm to national security. The Senate bill applies to confidential sources except if they were eyewitnesses to crimes or if disclosure would prevent a terrorist attack or bodily harm. While there are other distinctions between the two proposals, we support both of them. The Washington Post continues to lobby actively for a shield law.
In recent years, more than 40 reporters have been taken to federal court and questioned about their sources, notes and reports in civil and criminal cases. Journalists have had to lawyer up after stories on steroid use in baseball and the Wen Ho Lee spy case. Currently, 49 states and the District of Columbia have shield laws or court decisions that protect journalists from being compelled to reveal their sources. There's no such protection at the federal level. Attorney general nominee Michael Mukasey's contention that tinkering with internal Justice Department guidelines is the way to go is a nonstarter.
And so we wait for Reid. He could elect for a House-Senate conference committee that would hash out a single bill that would go back to both chambers for a vote. The likelihood of that happening is small since there have been no conference committees in this Congress. Or Reid could call a vote on the House bill, which would go directly to the president for his signature. We urge Reid to move on this quickly. Federal prosecutors should turn to the media as a last resort - not as the first stop.