During his campaign for president, Barack Obama expressed support for a federal "shield law" to protect journalists' confidential sources. Thirty-six states and the District of Columbia offer such protection.
With the reintroduction in the House of the Free Flow of Information Act, Obama has the opportunity to fulfill his commitment. We hope that won't be made more difficult by some comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearings.
Asked by Sen. Patrick J. Leahy (D-Vt.), the chairman of the Judiciary Committee, whether he would work with the committee to enact a shield law, Holder said he supported a "carefully crafted" statute. So far, so good. But then Holder said he would listen to the reservations of "career folks" in the Justice Department about the legislation. He added: "I'd also want to ensure that with the passage of any law that we will still have the capacity to protect the national security and to prosecute any leaks of intelligence and information that might occur."
To those who haven't followed this issue, Holder's comments might sound like the natural response of a cautious lawyer. But Leahy's question wasn't asked in a vacuum. As the senator pointed out, a version of the legislation approved by the committee last year contained "reasonable exceptions ... to prevent terrorism and protect national security and personal safety." The bill introduced last week, the Free Flow of Information Act of 2009, includes precisely the same protections.
Under the bill, a federal agency wouldn't be able to force a journalist to provide testimony or documents unless a judge determined that evidence wasn't available elsewhere. Even then, courts could order disclosure not just for the reasons specified by Leahy but also to identify someone who has disclosed a trade secret or confidential medical records. Overall, a court would have to determine whether "the public interest in compelling disclosure of the information or document [in the journalist's possession] outweighs the public interest in gathering or disseminating news or information."
The carefully crafted compromise Holder said he favors already exists and was approved in the last Congress by both the Senate Judiciary Committee and the full House. Holder should listen politely to objections from his subordinates -- and then advise Obama to keep his promise.