John F. Sturm: The Senate must pass a federal shield law
With WikiLeaks.org recently publishing more than 91,000 classified military reports from the war in Afghanistan, some have questioned whether now is the right time to enact a federal shield law. The media and journalism communities, as well as members of Congress who value the free flow of information, are in firm agreement: The time has never been more right.
Unlike the source-to-screen approach of WikiLeaks, professional journalists do more than simply post raw data. The important role journalists play in our democracy can never be replaced by websites that publish source documents without the editorial oversight, research, analysis and balanced reporting that are so essential to public understanding and debate.
It is these working journalists who face escalating pressure to reveal their confidential sources. Congress must protect the public's right to know by enabling journalists - in limited and defined circumstances - to protect confidential sources when subpoenaed in criminal and civil cases.
Everyday journalists rely on government or corporate whistleblowers to share information they would not normally be able to access. Such sources enable members of the press to craft stories that are vital to the public interest. Yet many sources would not come forward without a promise of confidentiality.
The need for a federal shield law remains critical. Subpoenas seeking the identities of confidential sources are currently pending against two Pulitzer Prize-winning journalists who reported on matters of significant public interest.
In April, the Justice Department resurrected a subpoena (originally issued by the Bush administration) to New York Times reporter James Risen, who revealed in a book that the CIA intended to give Iranian scientists flawed technical specifications, but may in fact have shared with them valuable nuclear technology. A subpoena issued to David Ashenfelter of the Detroit Free Press, who had written a series of articles about a federal prosecutor under investigation for possible serious misconduct during a high-profile terrorism trial, is still pending after three years of litigation.
The effort to pass a federal shield bill has never rested on any one case or situation. The goal is to harmonize the law across all federal jurisdictions, creating consistent and clear rules for judges, prosecutors, civil litigants, journalists, and - most importantly - potential sources.
By developing uniform rules, a federal shield law would not create procedural hurdles for the government in an investigation or prosecution. The legislation is modeled on existing case law and the Department of Justice's own regulations for issuing subpoenas to news media - rules that have been on the books for decades.
With WikiLeaks.org recently publishing more than 91,000 classified military reports from the war in Afghanistan, some have questioned whether now is the right time to enact a federal shield law. The media and journalism communities, as well as members of Congress who value the free flow of information, are in firm agreement: The time has never been more right.
Unlike the source-to-screen approach of WikiLeaks, professional journalists do more than simply post raw data. The important role journalists play in our democracy can never be replaced by websites that publish source documents without the editorial oversight, research, analysis and balanced reporting that are so essential to public understanding and debate.
It is these working journalists who face escalating pressure to reveal their confidential sources. Congress must protect the public's right to know by enabling journalists - in limited and defined circumstances - to protect confidential sources when subpoenaed in criminal and civil cases.
Everyday journalists rely on government or corporate whistleblowers to share information they would not normally be able to access. Such sources enable members of the press to craft stories that are vital to the public interest. Yet many sources would not come forward without a promise of confidentiality.
The need for a federal shield law remains critical. Subpoenas seeking the identities of confidential sources are currently pending against two Pulitzer Prize-winning journalists who reported on matters of significant public interest.
In April, the Justice Department resurrected a subpoena (originally issued by the Bush administration) to New York Times reporter James Risen, who revealed in a book that the CIA intended to give Iranian scientists flawed technical specifications, but may in fact have shared with them valuable nuclear technology. A subpoena issued to David Ashenfelter of the Detroit Free Press, who had written a series of articles about a federal prosecutor under investigation for possible serious misconduct during a high-profile terrorism trial, is still pending after three years of litigation.
The effort to pass a federal shield bill has never rested on any one case or situation. The goal is to harmonize the law across all federal jurisdictions, creating consistent and clear rules for judges, prosecutors, civil litigants, journalists, and - most importantly - potential sources.
By developing uniform rules, a federal shield law would not create procedural hurdles for the government in an investigation or prosecution. The legislation is modeled on existing case law and the Department of Justice's own regulations for issuing subpoenas to news media - rules that have been on the books for decades.
Supporters of a federal shield law acknowledge that it would not be reasonable to protect the source's identity in every case, which is why the Senate bill contains extremely broad exceptions when the government seeks information from a journalist that could thwart a terrorist attack or otherwise prevent harm to national security.
Opponents are wrong to suggest that a federal shield law would encourage more government leaks. With a clear legal framework for when a journalist can and cannot protect a source, both journalists and potential leakers will likely be more mindful of whether public disclosure of confidential or classified information would truly serve the greater good.
Moreover, with more legal certainty, potential leakers may be more inclined to work with professional journalists who are more likely to get the story right, rather than simply upload classified documents to faceless websites. This is important because the professional news media regularly take national security into account in their reporting. They exercise editorial judgment and, in exceptional situations, work with the government to protect intelligence sources or methods - and human lives - while still fulfilling their journalistic duty to inform the public.
The House passed a shield bill twice, most recently in March of last year by a unanimous voice vote. The bill currently being considered by the Senate, the Free Flow of Information Act (S. 448), has been modified considerably over the past six years to address national security concerns. The Senate Judiciary Committee passed the bill in December 2009 by a 14-5 bipartisan vote.
This strongly bipartisan legislation - rare in our current political climate - heeds the warning from our founding fathers: a free and democratic society cannot survive without an informed citizenry.
Only one action remains before the bill can land on the President's desk - a Senate vote before the end of this Congress. Enactment of a federal shield law is long overdue.
Sturm is president and CEO of the Newspaper Association of America.
