The case for a federal media "shield" law is simple: Reporters must be protected so they can give citizens the information they need, particularly information that powerful interests would rather keep secret. Whistle-blowers and other insiders -- without a meaningful promise of confidentiality from journalists -- would be less willing to expose wrongdoing, both in and out of government.
The ability of journalists to protect their sources is, simply put, a fundamental pillar of our democracy and liberty.
In a perfect world, all sources could speak without fear of reprisal. But we don't live in that world, and examples abound of scandals that were unearthed only with the help of confidential information. Consider the recent cases concerning the inexcusable treatment of wounded soldiers at Walter Reed Army Medical Center, accounting fraud at Enron, the abuse of prisoners at Abu Ghraib, rampant steroid use in Major League Baseball or the existence of secret CIA prisons in Eastern Europe. There's also the 1971 publication of the Pentagon Papers. And of course there's Watergate. The information that brought down a president was supplied by the most famous of confidential sources -- "Deep Throat" -- who exposed crime and corruption only because he knew he could count on the reporters' promise that they would protect his anonymity.
States understand the idea -- 49 plus the District of Columbia guard a journalist's ability to shield sources.
But we don't have a shield law that applies in federal court. And in recent years, we've seen more instances of judges -- at the behest of aggressive federal prosecutors and private lawyers in federal lawsuits -- compelling journalists to reveal their sources.
As the Senate works to craft a shield law, one crucial issue is determining who is a journalist. In other words, whose promises of confidentiality deserve protection?
For me, it's always instructive to go back to the founders when addressing questions like these. Who did they have in mind when they drafted a 1st Amendment that wisely gave broad protection to "freedom of the press"?
The answer surely includes pamphleteers such as Thomas Paine. Throughout the revolutionary era, countless citizen-journalists like Paine, operating on street corners in Boston, New York and Philadelphia, informed the public, exposed and challenged corruption, and indeed inspired the American Revolution. That experience must inform whom we consider deserving of the shield.
Today's critics miss the mark when they argue that unless we sharply limit who counts as a "covered person" under a shield law, then irresponsible bloggers, freelancers and others will claim protection they don't deserve.
Though not all bloggers are potential candidates for a Pulitzer Prize -- indeed, some are terribly irresponsible -- as a group they are today's street-corner pamphleteers, protecting our freedom and strengthening our democracy. Their predecessors in the founding generation surely would have understood the dangers in allowing Congress, or the executive, to deny the law's protection to whole categories of journalists based simply on their employment status or the medium in which they work. We in government must not permit our aversion to criticism, or our hostility to a particular message, to dictate who's in and who's out.
A free press, like free elections, is essential to a robust democracy. Around the world, we see governments bent on repression doing all they can to intimidate and control journalists. Tragically, that repression sometimes takes the form of literally shooting the messenger. The number of journalists slain worldwide climbed steadily from 2001 through 2007.
Usually the techniques of repression are more subtle. Whether it is the insidious use of defamation laws to throw journalists in jail, or the denial of press credentials to reporters seen as a threat to power, or repeated assaults and harassment of reporters, these regimes do all they can to create a climate of fear and self-censorship.
Here at home the founders well understood the importance of a free press to check the abuse of power. As Thomas Jefferson said: "Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it."
Freedom of the press does not come without cost. If we wanted to make law enforcement as easy as possible, we would not have a shield law. We'd also jettison the privilege against self-incrimination, and the protection of communications between lawyers and clients, penitents and clerics, doctors and patients, and husbands and wives.
The Free Flow of Information Act, approved by the Senate Judiciary Committee on Dec. 10, springs from the central principles of the 1st Amendment and should be passed without delay. Our founders understood, and we should reaffirm, that the key to a free society is a free press.
Ted Kaufman, appointed to Vice President Joe Biden's Senate seat, is a member of the Judiciary Committee.