The House of Representatives this week took a long step toward protecting the American people's access to a free press when it overwhelmingly approved passage of a federal shield law that would prevent journalists from being compelled to reveal confidential sources.
The Free Flow of Information Act had bipartisan sponsors -- Rep. Mike Pence (R-Ind.) and Rep. Rick Boucher (D-Va.) -- and 176 Republicans joined 222 Democrats in supporting its passage 398-21. The measure now goes to the Senate, whose Judiciary Committee recently approved its own version of the so-called shield laws. Thirty-two states, including California, and the District of Columbia already have such statutes.
While the House bill is an important advance in the long struggle to deprive government prosecutors of their ability to intimidate reporters and editors with fines and jail terms, it's an inadequate remedy to the current problem. Essentially, it would take the Justice Department's current views on when it's appropriate to demand that reporters give up their sources, and write them into law -- though the discretionary power on when to make the demand would be shifted from the executive branch to federal judges. They could compel journalists to cooperate with prosecutors in reasonable circumstance -- such as preventing imminent death or an act of terrorism -- and under far more dubious circumstances. An amendment to the House bill, for example, would allow a judge to compel testimony concerning someone who has "revealed a trade secret."
The American Civil Liberties Union's evaluation of the Free Flow of Information Act pointed to still other deficiencies: "Amendments to the bill added exceptions that will limit the public's access to information even in cases where there is no tangible threat to national security or public safety," the ACLU wrote. "Under an adopted amendment offered by Rep. Lamar Smith (R-Texas), a court may consider alleged harm to national security even in cases where the information provided to a journalist is not 'properly classified.' The bill also gives the administration some discretion to decide who qualifies for the privilege. Under the exceptions added to the bill, the administration can arbitrarily designate a journalist as a 'terrorist' based solely on unsubstantiated evidence of their alleged association and speech."
