More Journalists Facing Jail

Time to pass a federal shield law

UNLESS A federal appeals court steps in, two reporters for the San Francisco Chronicle will head to jail for as long as 18 months. Lance Williams and Mark Fainaru-Wada broke an important story: the grand jury testimony of baseball superstars, including Barry Bonds, concerning the steroid-dealing BALCO lab and their use of its products. They have properly refused to identify their sources, despite a subpoena from federal authorities. And as has become distressingly common in investigations and lawsuits around the country, the journalists are facing jail time for doing their jobs.

Any reasonable balancing of the interests that clash when law enforcement needs to know a reporter's sources would, in this case, favor letting Mr. Williams and Mr. Fainaru-Wada honor their commitments of confidentiality. The public service they did by exposing steroid use among top athletes was significant. As Mr. Fainaru-Wada put it in court this week: "A fraud was being perpetrated on sports fans -- with athletes using illegal performance-enhancing drugs to manufacture records and achievements that were, at best, deceitful, and, at worst, an illusion." It's hard to see how the public's interest in getting to the bottom of a routine leak outweighs its interest in access to such stories.

Yet federal law, unlike the law in nearly every state, does not give a reporter any protection against compelled disclosure of confidential sources in criminal investigations. And the judge in this case, Jeffrey S. White, specifically declined to balance any harm the leak caused against the value of the information to the public.

Congress has legislation pending that would give journalists a limited privilege, but the Senate Judiciary Committee has yet to act on it. Under its terms, a judge might still order a journalist to give up a source or face jail, but the judge would first have at least to take "into account both the public interest in newsgathering and maintaining a free flow of information to citizens." (Disclosure: The Washington Post Co., along with other media organizations, filed a friend-of-the-court brief on behalf of the reporters, and Post executives are lobbying for the shield bill.) How many more reporters are going to get locked up before Congress passes this modest reform?