For years, members of Congress have tied themselves in knots trying to figure out how to pass a "shield law" that allows journalists to protect the identities of sources without giving anything to journalists whom those same members do not like or appreciate. Lawmakers recognize the value of protecting sources when they disclose the Pentagon Papers or details about Watergate, but they're less keen on those who reveal corporate secrets or classified documents about wars they support. Now, with a shield law poised for approval, the WikiLeaks disclosures of classified material from Afghanistan have reinforced the timidity that has delayed this legislation for too long.
Sen. Charles E. Schumer (D-N.Y.) summed up the latest setback when he explained that he wanted to make sure that the right to protect sources of confidential information would not apply to "organizations like WikiLeaks," which exists to publish materials not authorized for release. That's perhaps understandable; members of Congress were hardly alone in being troubled by the notion that secret military documents could pop up on the Internet. But Schumer's statement betrays the problem: What is an "organization like" WikiLeaks? The New York Times published some of those same documents on its website. Does that make it "like" WikiLeaks?
Journalism is fast-changing, and Congress is slow-moving. One consequence is that the more Congress attempts to define journalism, the more anachronistic Congress becomes. Rather than trying to figure out who should be protected and who should not, Congress should focus on what it is trying to accomplish — namely, to preserve for citizens of this democracy the information they need to govern themselves, information that sometimes only becomes public if those who have it can supply it anonymously. The bill as written does not permit every leaker to escape punishment; it merely requires judges to balance the interest of protecting a source against the public's interest in the information sought, and it specifically creates a national security exception. Those compromises already go far — too far, in our view — toward intimidating sources, but they provide more than enough protection for what Schumer and his allies, including Sen. Dianne Feinstein (D-Calif.), fear.
Finally, there is this: Conventional news organizations of the types that Schumer, Feinstein and others want to protect — this one, for example — generally know the sources who supply sensitive information. WikiLeaks apparently does not. If, then, Congress fails to enact a shield law, sources who want to remain anonymous will be safer turning over material to WikiLeaks than to The Times or CNN or Slate or any other news outlet of the type Schumer and Feinstein want to protect. That would be paradoxical indeed.