Shield for the public

Posted: Sunday, November 22, 2009

The following editorial first appeared in the Chicago Tribune:

When a reporter publishes leaked information that embarrasses those in power, those in power may be tempted to respond by hauling the journalist into court to disclose the names of the leakers. The ploy can serve an ingeniously dual purpose: punishing the person who disclosed the material and putting fear in anyone who might consider doing likewise.

That's why most states have laws protecting reporters against such subpoenas. They understand that a lot of the most important knowledge about how government functions comes from people inside the government - who will share their knowledge only if they can remain anonymous and thus safe from retribution.

Until now, though, there was no such barrier to federal prosecutors, because there is no federal law shielding journalists from being forced to burn their sources. But after years of effort, and the election of a president who supports such a measure, that may be about to change.

During the presidential campaign, Barack Obama endorsed a strong federal shield law. A few weeks ago, though, his administration took a different tack, insisting that a bill authorize subpoenas if a revelation was so much as "reasonably likely" to harm national security. In those instances, the news media would not be given the chance to show that the public interest in knowing the information was greater than the alleged damage.

In all, the administration's version would have amounted to a hollow gesture.

But under pressure from Democrats in Congress, the Justice Department has come to its senses, accepting a compromise that represents a great improvement over the status quo.

The revised legislation would force the government to exhaust all other possible sources of the information and demonstrate that the information is essential to its case. Even if those requirements are met in a criminal case, the news organization would have the opportunity to make a "clear and convincing" argument that the information is of great public value.

When public safety is truly at stake, and classified secrets are involved, the law would give considerable deference to the government. But the government would have to persuade a judge that it needs the information to prevent death or serious injury, kidnapping, a terrorism attack or some other "significant and articulable harm to national security."

This compromise has the additional virtue of extending protection to freelance writers, student journalists and bloggers if they are regularly engaged in journalism.

Senators, bring it to a vote.

The language falls short of what many news organizations would prefer. But as Sen. Charles Schumer, D-N.Y., says, "it preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens." It deserves to become law.

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