WE HAVE, quite naturally, a particular interest in those parts of the proposed federal criminal code that deal with secrecy and the press. When the code first appeared in the Senate some years ago as S.1, its provision concerning those matters were disastrous. The goal of the code seemed to be to create an Official Secrets Act that would have made it quite risky both for unauthorized government employees to disclose information and for newspapers to print anything that government higher-ups wanted to conceal. Happily, most of that was jettisoned before the Senate passed its version of the code last winter. What remains is largely a rewrite of law now on the books althougj there are two provisions of particular interest.
One of these deals with the leaking of information that was submitted to the government in private. It is aimed at protecting confidential information the government requires citizen to provide, such as trade secretas and census data. The goal is legitimate but the problem is to draft language that protects real confidences without punishing government employees for disclosing evidence of wrongdoing. The Senate bill resolves this by making it a crime, punishable by up to a year jail, for a public servant to disclose information submitted solely to obtain a patent, copyright, license, job or benefit or to comply with a specific requirement of law as long as rule or regulation bar its disclosure.
That covers far more information than any law now on the books, and it strikes us as being much too broad. It might, for instance, penalize an employee for blowing the whistle on cost overruns or on certain kinds of corruption. While there is an exemption if a disclosure of illegality is made to a law-enforcement officer, either the exemption must be widened to include other kinds of disclosure or the definition of what is confidential must be narrowed considerably.
The other provision of particular interest makes it a crime for anyone to retaliate, physically or economically, against a witness or informant because of testimony given in official proceedings or information given to investigators. Some of our colleagues in the newspaper business are worried about this. They claim newspapers might be prosecuted for publishing a news story or an editorial about a witness's testimony if someone were fired or suffered a loss of business as a result of what they published. That is not the intent of the provision, as its legislative history makes clear, and it would be unconstitutional if it were. We regard this section, and its companion which protects government employees from retaliation for their official acts, as useful expansions of the law.
That is not the only part of the proposed code on which we find ourselves in disagreement with others in the news business. There has been considerable oppositions, most notably from the Reporter Committee, to the way in which the Senate's version of the code handles the right of reporters to protect confidential sources. The code generally leaves the development of a reporter's privilege where it is now: in the hands of the courts. That's where we think it belongs. Indeed, we urge Congress not to legislate this kind of protection for reporters. As a matter of principle, the press should not ask Congress for this or other special treatment because it might come to rely on favors that another Congress at a later date could take away.
There is, we concede, one portion of the proposed code which we favor and which does give the press special consideration. That is a provision barring federal judges from punishing reporters or newspapers who disobey "gag" orders if the orders are subsequently held unconstitutional. That is a useful, if only partial, antidote to the current national avalanche of injunctions (most of them in state courts) restricting the reporting of court proceedings. The change approved by the Senate would mean that a reporter who is ordered not to publish certain facts could publish them anyway and escape punishment if the order was invalid. As the law stands, disobedience of invalid orders is punishable. As helpful as it would be to have this kind of special treatment, we urge Congress to go further and extend the same protection to everyone. We see no reason why anyone should be punished for disobeying an invalid judicial order when no one is punished for disobeying an invalid act of Congress or order of the president.
There are pending before the House Judiciary subcommittee some other proposals that would have a devastating effect on the news business and on the flow of information from government, proposals, for example, that would make it illegal to publish a stolen document or to possess government information without permission. Those are the remnants of S.1 that were left in the wastecan as that bill was modified in the Senate. The House subcommittee should leave them there.