Time for a Federal Shield Law - New York Times

Time for a Federal Shield Law - New York TimesJuly 21, 2005
Time for a Federal Shield Law

It was immensely encouraging to see Republican and Democratic lawmakers testify together yesterday about the need for the federal government to follow the lead of 49 states and guarantee that journalists are allowed the right to protect the names of confidential sources in most circumstances. Two Republicans, Senator Richard Lugar and Representative Mike Pence of Indiana, and Senator Christopher Dodd, Democrat of Connecticut, spoke eloquently about the role of a free press in a democracy. They have also shown that drafting a responsible shield law is not as hard as some critics say. Just this week, they amended bills pending in both houses of Congress to address the government's concern that the rights of reporters should not override the security of the nation when it faces an imminent threat.

But the day's testimony was also disturbing. Witnesses spoke of the dozens of subpoenas that have been issued to journalists in recent times and the half-dozen or more reporters who have been found to be in contempt of court for doing their jobs - some journalists, like Judith Miller of The Times, have actually been jailed. As Mr. Dodd pointed out, the idea that jailing reporters will inhibit journalism is not a theoretical worry. Norman Pearlstine, editor in chief of Time Inc., testified yesterday that since his decision to turn over notes in the Valerie Wilson case to the federal prosecutor, Time reporters had shown him mail "from valuable sources who insisted that they no longer trusted the magazine." The Cleveland Plain Dealer has announced it will not publish two investigative reports because they are based on leaked documents and the paper fears the possibility of subpoenas. Its editor said, "Jail is too high a price to pay." We regret that decision, but it should at least ring alarm bells for Congress.

The amendments added this week to bills before the Senate and the House would provide for the forced disclosure of confidential sources "to prevent imminent and actual harm to the national security." It is a narrow exception that journalists should support, because as William Safire, the retired Times columnist, testified yesterday, "We are not seeking an absolute privilege." We second Mr. Safire's caution that an imminent threat means an actual and urgent threat, not a potential threat.

Mr. Safire and the other witnesses deftly refuted the arguments that have been used to cloud the debate. There is no case on record, for example, of a newspaper's claiming the right to protect a violent criminal. Nor is there any reason to believe that a journalistic privilege would hamper prosecutions any more than the privileges already granted to doctors, psychiatrists, lawyers and spouses. There is no case on record where prosecutions have not been brought or have failed because of shield laws in states where such laws - including many providing absolute protection - have been on the books for decades.

We wish the Justice Department had shown enough interest to send a witness to this important hearing at the Senate Judiciary Committee. But there should be no doubts left about bipartisan support for a federal shield law, or about the practicality of drafting one that protects both a vital institution of democracy and national security. Congress, which has managed to consider pork-barrel spending and corporate giveaways, should be able to find the time to pass such a vital law in this session.