The 1st Amendment protects freedom of the press in the broad sense, not just the freedom to publish what a reporter has learned. That's why the U.S. Supreme Court erred in 1972 when it ruled 5 to 4 that reporters don't have a constitutional right to protect the confidentiality of news sources. Fortunately, laws in two-thirds of the states offer protection for journalists who abide by their promise -- which should never be given lightly -- that a source's identity will be safeguarded.
Federal courts would be forced to recognize the same privilege under legislation passed last month by the House. Senate Majority Leader Harry Reid (D-Nev.) should make passage of a companion bill a priority when Congress returns from spring recess next week. Each of the bills accomplishes the essential goal of creating legal protection for investigative reporting, and each has elements that would strengthen the other. President Obama can speed the process by re- iterating the support for a so-called shield law he offered during last year's campaign.
Readers prefer that the sources of important news stories be named, and reporters and editors agree. But confidential sources have made it possible for the press to expose abuses of power from the Los Angeles Police Department's spying on political leaders to the Bush administration's wiretapping, without a court order, of U.S. citizens suspected of being in contact with foreign terrorists.
The Free Flow of Information Act approved by the House would not provide blanket protection for reporters who rely on confidential sources. The bill would allow a judge to order the disclosure of a source's identity in narrow circumstances, such as when it was necessary to prevent an act of terrorism, avert loss of life or identify someone who disclosed trade secrets or confidential medical information. But a judge would be faced with those decisions only if he determined that the information sought by investigators or prosecutors couldn't be obtained elsewhere. Perhaps most important, the House bill instructs judges to protect confidential sources unless "the public interest in compelling disclosure ... outweighs the public interest in gathering or disseminating news or information."
The bill introduced in the Senate differs in two important respects. It would protect only information identifying a confidential source, whereas the House bill makes it harder for investigators to acquire other information in a journalist's possession. Many state shield laws don't go that far, but the broader approach would have the advantage of discouraging prosecutors from treating reporters' files as a source of first resort. It would be a desirable, if not indispensable, feature of a House-Senate compromise bill.
On another issue, the Senate bill is superior. It defines someone covered by the law as "a person who is engaged in journalism." The House bill limits protection to those for whom journalism represents "a substantial portion of the person's livelihood" or produces "substantial financial gain." In the age of the Internet, this is too cramped a definition of the news media and would exclude bloggers, freelancers and many student journalists.
The final version of this legislation should make clear that it's protecting an activity -- public-spirited journalism -- not just a profession.