Time for a Shield Law

Monday, March 3, 2008

THERE ARE laws or court decisions in 49 states and the District of Columbia that protect the relationship between reporters and their sources. Yet no such safeguard exists on the federal level. The House passed such a bill, but the Senate measure that cleared the Judiciary Committee last October still awaits a vote on the floor. That such action is sorely needed is highlighted by the case of former USA Today reporter Toni Locy.

Ms. Locy was found in contempt of court by U.S. District Judge Reggie B. Walton on Feb. 19 for refusing to name her sources for stories about Steven J. Hatfill. The Army scientist was named by then-Attorney General John D. Ashcroft as a "person of interest" in the 2001 anthrax case that killed five people. Mr. Hatfill brought a civil lawsuit against Mr. Ashcroft, the Justice Department and the FBI claiming that they violated his privacy rights.

After getting permission from two of her sources, Ms. Locy revealed their identities. She has refused to disclose who else among 10 regular sources she might have spoken to because she says can't remember who told her specific pieces of information for her May 2002 story. The only way she can comply with the court's order is to reveal all of her confidential sources -- even ones who gave her information that is not at issue in the Privacy Act lawsuit. That's unacceptable. But Judge Walton has slapped Ms. Locy with a devastating contempt-of-court charge that carries a penalty starting at $500 a day and climbing to $5,000 a day. To make matters worse, he has yet to rule whether he will stay the fine pending appeal and, if not, whether he will make Ms. Locy pay the fines personally.

The Senate's Free Flow of Information Act would have provided a higher degree of protection for Ms. Locy, who used to write for The Post. It would establish a qualified privilege not to disclose confidential sources that can be overcome if the information cannot reasonably be obtained elsewhere and is essential to the particular case. But most important, it would require courts to consider the public interest in a free flow of information to reporters -- something Judge Walton and other federal judges have declined to do.

The bill also contains sensible protections for national security. For instance, the shield would not be operative when there is evidence that disclosure of the source would prevent a terrorist attack. Yet the bill, lobbied for by The Washington Post Co. and other media organizations, is stuck in the Senate.

More than 40 reporters have been questioned by federal prosecutors about their sources, notes and reports in civil and criminal cases in recent years. Without protection on the federal level, the public's right to know will surely be diminished. The Senate must act to ensure that doesn't happen.

© 2008 The Washington Post Company