Protecting the public's need to know

For US journalists trying to protect confidential sources - and thus obtain vital news about government or the private sector - these are perilous times. Recent attempts to expose those sources show why a federal media "shield" law is needed now.

Confidentiality is often essential in news gathering. It gives potential whistle-blowers the protection they may need in providing reporters with information of critical public importance. That can include matters of health and safety, abuse of public office, or intelligence that contradicts the government line. The agreement made when a reporter promises not to identify a source facilitates the media's watchdog role in a democracy. The Founding Fathers felt that role was so important that they enshrined a free press in the First Amendment.

But how free is free is a matter of debate. A proper balance must be struck between giving the media the loose rein it needs to go after facts without fear of prosecution, while at the same time holding it to a standard of responsibility - for instance, by not revealing government secrets that are vital to national security.

So far, the states have been at the forefront in clarifying a legal privilege for reporters. More than 30 states have laws that shield reporters from having to reveal confidential sources in most instances. However, recent federal court cases have led to a flurry of journalists being subpoenaed, held in contempt of court, or jailed for refusing to name names.

Last year, a New York Times reporter spent 85 days in jail for refusing to testify before a grand jury in a probe about the Valerie Plame-CIA leak. Earlier this month, five news organizations paid $750,000 to former nuclear lab scientist Wen Ho Lee to avoid having to tell him their sources in his suit against the government.

In a related area, the Bush administration is taking a tough stance with journalists regarding their use of classified material. It's considering prosecuting reporters who publish official security secrets. And the FBI is demanding 50 years' worth of the files collected by deceased investigative columnist Jack Anderson because it says those files contain such documents.

"Over 30 reporters were recently served or threatened with jail sentences in at least four different federal jurisdictions for refusing to reveal confidential sources," Sen. Richard Lugar (R) of Indiana said in May, when he reintroduced a bipartisan media shield law. "I fear the end result of such actions is that many whistleblowers will refuse to come forward, and reporters will be unable to provide our constituents with information they have a right to know."

Under the bill, requesters of a reporter's confidential material would need to show that they've exhausted all other alternate sources, that they have reason to believe the information is relevant and critical to the case, and that the disclosing of confidential sources outweighs the public interest in news gathering.

Such a law is especially needed during the war on terrorism, when government interest in protecting secrets is strong but its mistakes are plentiful. The proposed Senate bill - as well as a House version - takes national security into account. That should answer whatever doubts lawmakers have about a national shield law, and spur its passage.