Why We Need a Shield Law

By Arlen Specter
Monday, May 5, 2008

Attorney General Michael Mukasey is wrong when he says we do not need a federal media shield law.

Mukasey recently argued in an op-ed that there is no need for Congress to provide a qualified, evidentiary privilege for journalists. As evidence, he cited a few of the many important news stories that, even in the absence of a shield law, were brought to light because of sources who provided information to journalists under a promise of confidentiality. Pending media shield legislation would impede the investigation of crimes and threats to national security, he argued. As the ranking Republican member of the Senate Judiciary Committee, I strongly disagree with him.

I championed Mukasey's confirmation as attorney general, and I certainly believe that we must protect national security and preserve effective law enforcement. But a media shield law would not primarily be protection for journalists; it would be protection for the public and for our form of government.

The importance of a free press is so woven into the fabric of our history that Americans often take it for granted. But when we observe fledgling democracies around the world, Americans can see just how essential a free media are to democracy -- and how easily they can be chilled. If we are to have a free press, it is necessary to protect the relationship between journalists and trusted sources to whom journalists have promised confidentiality. For this reason, every state but Wyoming has established some form of reporters' privilege.

The federal courts are split, however, on whether reporters have a common-law privilege to withhold information from a federal court. Attorneys general of 34 states recently urged the Supreme Court to recognize a federal reporters' privilege because the lack of a federal standard undermines state shield laws and the public interest embodied in those laws. It takes only a few well-publicized cases of the government or federal courts forcing reporters to reveal confidential sources -- Time's Matt Cooper; former New York Times reporter Judith Miller spending 85 days in jail; or former USA Today reporter Toni Locy being ordered to pay up to $5,000 for each day she remains silent, with no contributions allowed from her employer, family or friends -- to chill those who have important things to say.

Certainly the courts should compel disclosures in cases involving acts of terrorism, exigent circumstances or leaks of classified information that undermine our national security. Courts should compel disclosure if a journalist commits a crime or is an eyewitness to a crime. And, of course, journalists should not be "above the law." To clarify any suggestions to the contrary, there will no doubt be modifications to the bill that was voted out of the Senate Judiciary Committee 15 to 4 last October. It is also notable that the House passed a similar media shield bill last year by a vote of 398 to 21.

All three of the presidential candidates have endorsed a federal shield law. They acknowledge, as do my other colleagues in the Senate who support this bill, that we must seriously consider the concerns raised by the attorney general. Federal courts routinely balance liberty and security. When time is of the essence and the stakes are high, courts typically defer to the factual judgments and expertise of those better situated to make certain decisions. But the courts need guidance from Congress regarding the standards they should apply to the varying facts and circumstances -- to the evidence -- when a reporter refuses to reveal confidential sources. That is what a media shield bill would do. It would not be a drastic change in the law, but it would be an important one.

The writer, a Republican from Pennsylvania, is the ranking minority member of the Senate Judiciary Committee.

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