The need for a shield

Sunday, May 20, 2007

Try, try again? Advocates for a federal shield law for journalists haven't succeeded yet, but they keep trying. A bipartisan group of U.S. senators and representatives have introduced bills in both houses of Congress to provide journalists with a "qualified" privilege not to disclose sources and information.

The effort got under way in late 2004, but at first went essentially nowhere. Meanwhile, federal subpoenas began piling up. The Columbia Journalism Review reports that of some 96 federal subpoenas served on members of the press in the past 15 years, nearly half have come since 2004. That, along with the jailing of New York Times reporter Judith Miller, has persuaded many once skeptical journalists, their employers and other media organizations that a federal law is needed.

The U.S. Department of Justice has been operating since Watergate days with a set of guidelines about when journalists can be subpoenaed but in at least some recent cases, the guidelines have been ignored. Those cases include the sentencing of two reporters from the San Francisco Chronicle for refusing to disclose where they got a transcript of testimony regarding steroid use in major league baseball.

Under the guidelines the subpoenas should have been issued only after every other means of obtaining the information had been exhausted, but in this case it was the first thing prosecutors tried. The sentence was stayed while the subpoenas were on appeal, and then the subpoenas were dropped after the source of the leak pleaded guilty - demonstrating that there were, in fact, other ways of identifying him.

The Justice Department is fiercely opposed to the bill, claiming that judges who would have to rule on whether any of the exceptions to the privilege apply are not qualified to make the decision. That claim doesn't hold up, given that 32 states have shield laws and 17 others have a history of case law establishing judicial precedent.

Many important stories are uncovered only because people with information feel they can trust journalists to keep a promise of confidentiality. A federal shield law has become a necessary component of that trust.