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A solid shield

Congress should reject attempts to water down legislation that would let journalists protect their sources.

August 01, 2007

Today, the House Judiciary Committee is expected to take up long-overdue legislation to require federal courts to join 33 states and the District of Columbia in recognizing a reporter's privilege to protect confidential sources. Supporters of the proposed Free Flow of Information Act are willing to fine-tune in response to criticism from the Bush administration, business groups and privacy advocates, but a bad bill would be worse than no bill at all. The committee should resist the temptation to add exceptions that would undermine the rule it is trying to enshrine and cheat the real beneficiaries of the legislation -- not reporters, but the public they inform.

The bill introduced in both houses of Congress earlier this year provided for a federal shield law, which at present exists in attenuated form in Justice Department guidelines and in the willingness of some federal judges to recognize a "common law" reporter's privilege. Under the original bill, a judge could order a reporter to identify a source when information couldn't be obtained from other sources, and when the information being sought was "essential" to the prosecution or defense of a criminal case or "necessary to prevent imminent and actual harm to national security." Exceptions also could be made for information that might disclose who leaked a trade secret or confidential medical information.

Some of the proposed changes are acceptable. For example, allowing for compelled disclosure when information is "critical" to the resolution of a criminal case rather than "essential." Likewise, the exception for disclosure of information necessary to prevent "imminent and actual harm to national security" may be broadened to refer to acts of terrorism or "other significant specified harm to national security." But other changes would go too far -- such as a proposal that confidentiality could be breached to identify a source of information "in which a person has a reasonable expectation of privacy." Definitions of such information should be much more specific and pegged to federal law, not a multiplicity of state laws.

The committee also is likely to revisit the bill's definition of a "covered person." As originally introduced, the bill would grant the privilege to "a person engaged in journalism." The House committee is expected to replace that broad definition -- which some critics saw as covering every teenager with a MySpace page -- with language limiting the privilege to those who practice journalism for "financial gain or livelihood." This page has endorsed the broader definition, but the "livelihood" qualification, if interpreted generously by judges, would still protect many bloggers, freelancers and college journalists along with the so-called mainstream media. That would be an improvement over the status quo.

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