How big should the 'shield' be?

As the August recess for Congress fast approaches, supporters of a federal shield law for journalists are pressing for a vote on the Senate floor. A version of the bill, called the Free Flow of Information Act, passed in the House 398 to 21 in October, and now Senate Majority Leader Harry Reid has promised to take it up before lawmakers leave Washington for the rest of the summer.

Shield laws protect journalists from having to turn over certain information to courts -- such as the identity of a source, story notes or documents. Advocates contend that safeguarding journalists and their sources ensures that the public has access to the information it needs to watch over the government, powerful corporations and other important social institutions. Forty-nine states and the District of Columbia protect some journalists through such laws or court rulings.

Although state shield laws are important, they do not apply when federal law is at issue -- an enormous gap. That means in federal criminal cases (such as the trial of I. Lewis "Scooter" Libby), federal grand juries or civil cases brought under any federal law, journalists and their materials can be subpoenaed. Reporters, and their news organizations, can be held in contempt of court if they refuse to comply -- as happened to former New York Times reporter Judith Miller, who spent 85 days in prison for protecting the source who told her Valerie Plame worked for the CIA.

The Bush White House, which strongly opposes the idea, argues that a federal shield law would weaken law enforcement efforts and jeopardize national security. The administration enlisted key officials in its efforts to head off the bill: the secretaries of Defense, Treasury, Energy and Homeland Security, as well as the attorney general, wrote to Senate leaders to voice their opposition. The White House has suggested that President Bush will veto it. It is unclear whether the bill can draw veto-proof support in the Senate, although some backers -- which include 42 state attorneys general and numerous news outlets -- are optimistic.

There are compelling reasons to support a federal shield law, and reasonable arguments available to skeptics. But neither proponents nor critics are paying attention to a crucial question: Who should be covered by the shield law? That is to say, who is a journalist -- or at least a journalist deserving legal protection?