The President's Shaky Support for a Journalist's Confidential Sources

Sunday, October 4, 2009

PRESIDENT OBAMA has long said that he supports a law protecting the relationship between journalists and their sources. But his administration's latest proposal hardly reflects that. The language it has given the Senate Judiciary Committee belies the president's stated support for having judges balance the public interest in news gathering against the need to compel disclosure of a journalist's sources.

The House passed its version of the federal shield bill in March with bipartisan support and that of media organizations, including The Washington Post Co. In that measure, a journalist would be compelled to reveal a confidential source only under specified conditions, such as if disclosure is needed to prevent death, bodily harm or a terrorist act. Disclosure would also be required when investigators sought to identify a person who leaked properly classified information in a manner that caused "significant and articulable" harm to national security. But in all cases, those seeking to compel disclosure would have to exhaust all reasonable alternative sources of information and demonstrate that the public interest in disclosing the source outweighed the public interest in thorough news coverage.

By contrast, the administration's proposal would require courts in criminal cases to order disclosure of confidential sources as long as the government makes a reasonable claim that the information is essential, that it has exhausted reasonable alternatives and that it complies with internal guidelines for subpoenaing journalists. The reporter must show by "clear and convincing evidence" that there are "extraordinary circumstances" for protecting the identity of a source -- a virtually insurmountable burden. The proposal also strips the court of any opportunity to consider the public interest in reporting on national security matters.

The administration insists that its language is not final. Indeed, negotiations between the White House and the Senate Judiciary Committee are continuing. We urge them to keep talking and come up with a bill that is acceptable to all sides.

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