The Free Flow of Information

Wednesday, April 16, 2008

THERE'S NOTHING like a presidential campaign to help renew attention to the need for a federal law to protect journalists from being compelled by the government to divulge their sources. Sen. John McCain (R-Ariz.) got the ball rolling Monday when he told a gathering of newspaper publishers in town that he would support the bill. Sen. Hillary Rodham Clinton (D-N.Y.) sent word from the hustings that she was all for it. Sen. Barack Obama (D-Ill.) is a co-sponsor of the bill. Now it just needs to get to the floor for a vote.

In announcing his "narrow" support for the Free Flow of Information Act, Mr. McCain acknowledged the competing interests at stake: the people's right to know, which depends at times on information provided by confidential sources, versus the public interest in compelling disclosure in certain cases. Mr. McCain has his qualms about the shield law. "It is, frankly, a license to do harm, perhaps serious harm," he said. But then he added, ". . . it is also a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction." Mr. McCain said he understood the concerns of senators opposed to the bill and urged negotiation to bring them into the fold. Such action is already underway.

A revised version of the legislation that was sponsored by Sens. Arlen Specter (R-Pa.), Charles E. Schumer (D-N.Y.) and Richard G. Lugar (R-Ind.) and passed by the Judiciary Committee with overwhelming support last October is being hammered out to take into account some of the concerns of senators and the White House. A narrower definition of journalism would ensure that the privilege applies only to bona fide news-gatherers. This would keep "reporters" affiliated with possible terrorist groups from being able to use the law to duck prosecution. Critics of the bill also had expressed concern that federal prosecutors seeking to compel the disclosure of sources by a journalist would be forced to reveal classified information in open court. The compromise bill would authorize courts to consider the government's submissions under seal and not in public when good cause has been shown. Great care has also been taken by House members and senators to balance this privilege in light of the special concern for national security.

One need only look at the aggressive actions taken last month against Toni Locy, formerly of USA Today, to see why the legislation is needed. She not only was slapped with an onerous fine for refusing to name her sources but was also prohibited from accepting financial help to pay the fine. And last week, the New York Times reported that possible sources have been hauled before a grand jury by federal prosecutors and confronted with records of phone calls to Times reporter James Risen.

This is why The Washington Post Co. and other media organizations have lobbied strongly for this bill. The District of Columbia and 49 states have laws or consent decrees that protect the vital relationship between journalists and their sources. There should be a similar shield at the federal level. The House passed similar legislation by a vote of 398 to 21 last fall. Once the reworked Senate bill is ready, Majority Leader Harry M. Reid (D-Nev.) should schedule a vote.

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