SOME GOVERNMENT secrets should remain under wraps. Many others are kept out of view for poor reasons, including extreme caution, rote classification habits and a lack of recognition that withholding information from the public should be an extraordinary practice. One crucial job of a journalist is to look where she is not supposed to, serve as an advocate for the public’s right to know and disseminate information that people should see. Revelations about government misconduct, bureaucratic incompetence and undisclosed programs worthy of public debate are the result.
When the Obama administration wages an aggressive campaign against leaks or, as in previous administrations, journalists are threatened with or sent to jail because they refuse to give up their sources, people think twice about talking, and reporters are deterred from pursuing their mission. It’s long past time for Congress to pass a law protecting journalists from being forced to disclose information about the sources, methods and content of their reporting to the government.
On Sept. 12, the Senate Judiciary Committee approved just such a bill by a 13 to 5 vote. The Free Flow of Information Act would shield anyone associated or once associated with a news-gathering operation — including freelancers, student reporters and bloggers — who is working with the intent to convey information on important matters to the public. In cases involving criminal activity, federal judges would have to balance the government’s interest in getting information from journalists against the public’s interest in maintaining a free and aggressive press capable of obtaining and disseminating information. There would be exceptions for cases in which non-disclosure would directly endanger people’s lives or national security.
Critics say the bill would too narrowly define who is a journalist, potentially leaving out citizen-reporters who dig into important stories. Yet it would also empower judges to extend its protections to anyone if they determine that doing so would be “in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.” In other words, the bill would guarantee protections to a wide range of people who meet certain tell-tale characteristics. But it would also build flexibility into the system to recognize those who don’t fit neatly into the mold. If the bill became law, judges should not shrink from protecting those who deserve it.
Critics also say that the bill is far too weak. It wouldn’t, for example, have prevented the Justice Department from seizing Associated Press phone records without the news agency’s knowledge, as Justice did last year. But it would have forced investigators to consult a judge before taking those records, instead of deciding internally that they need not inform the AP.
Post executives have been lobbying for a journalist “shield law” for years. We hope that after this year, they will not have to.