A deal on a federal media shield is close.

Thursday, November 5, 2009

AFTER PROPOSING a federal media shield law that did little to protect the relationship between journalists and their sources, the White House has agreed with the Senate Judiciary Committee on a revised -- and much improved -- version of the Free Flow of Information Act.

Last month the White House sent the Judiciary Committee legislative language providing little protection for journalists. It seemed to betray President Obama's promise to support a judicial balancing test between the public interest in newsgathering and the need to compel disclosure of a reporter's sources. The revision does a much better job at mandating that balance.

Under the latest proposal, in both civil and criminal cases the government (or another party seeking disclosure) would have to demonstrate that the confidential information it seeks from a journalist is "essential" to resolving the case and that it has exhausted all reasonable alternative sources. Judges would weigh the public interest in thorough newsgathering against the interest in disclosing the source. The balancing tests are calibrated depending on the nature of the case. In civil cases, the information seeker must make the case for disclosure. In criminal cases, journalists would have to make the case against disclosure. The balancing test also covers cases involving leaks of classified information (with the journalist again bearing the burden of proof), unless the information sought would be needed to stop a terrorist attack or "significant and articulable harm to national security," in which case disclosure would be compelled. As in previous versions, the statute would not protect anyone who is affiliated with a terrorist organization or who has been designated a terrorist by the federal government.

The District and 49 states already have laws or court decisions that shield reporters from being compelled to reveal confidential sources in state court proceedings. The lack of similar protection in federal cases led The Washington Post Co. and other media organizations to lobby for the passage of the Free Flow of Information Act. Protecting the identity of sensitive sources is a pillar of American journalism. On the condition of anonymity, people come forward to point reporters in the right direction, or to offer direct testimony about violations of the public trust, or to expose abuses of power. This is vital for the public's right to know and for democracy.

The House passed a strong version of the bill by an overwhelming margin in March, and the Senate Judiciary Committee is set to vote Thursday. With a renewed promise from the president to sign the measure into law, this safeguard for the work of journalists is a step closer. We urge a strong bipartisan vote in committee followed by a full Senate vote as soon as possible.


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