The case for a federal shield law now
By Peter Scheer
July 8, 2005
Across the land, freedom of the press – that is, the freedom of American citizens, through the press, to be kept informed about the affairs of government – is under assault. The threat comes not from the left or the right, from the administration or Congress, but from federal judges, prosecutors and litigants who no longer feel constrained by law, ethics or policy from demanding that journalists disclose their confidential sources.
It is estimated that during the past year more than 70 journalists and news organizations have been involved in disputes with prosecutors and litigants in federal court over access to unpublished, confidential information. Dozens have received subpoenas demanding records or testimony; one journalist, Jim Taricani, a television reporter in Rhode Island, has already served a sentence for refusing to identify an anonymous source; and at least nine journalists have been held in contempt and currently face the threat of imminent incarceration or heavy fines (or both). New York Times reporter Judith Miller was ordered jailed on Wednesday. She likely will sit in the Alexandria Detention Center in Virginia for four months. (Time magazine reporter Matthew Cooper, explaining that his source had expressly relieved him of his secrecy obligation, announced on the same day that he would cooperate with Special Prosecutor Patrick Fitzgerald.)
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At stake is the American people's right to know about the uses and misuses of power in high places. If journalists cannot promise confidentiality to a source – and have that source believe that his or her identity will never be revealed – the public will lose news reports of the greatest importance and consequence for public policy. These include reporting on corporate malfeasance, national security and government corruption – all subjects for which confidential sources are not merely desirable, but indispensable.
The best example in contemporary history is the reporting by Washington Post reporters Bob Woodward and Carl Bernstein that uncovered the Watergate scandals. The secrecy surrounding their most valuable confidential source, FBI official Mark Felt (a.k.a. "Deep Throat"), lasted more than 30 years and was lifted only recently by Felt himself.
The judicial threat is almost uniquely federal. Forty-nine states and the District of Columbia, through legislation or court decision, have adopted "shield laws" providing an evidentiary privilege fo r reporters – much like the privileges enjoyed by clergy, lawyers and psychotherapists – to keep secret information given them in confidence. Although some federal judicial circuits also recognize such a privilege, most do not, and the Supreme Court's recent decision not to review a crucial contempt ruling against reporters Miller and Cooper leaves no room for hope that the federal courts will, on their own, end the assault on press freedom.
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Scheer is executive director of the California First Amendment Coalition (www.cfac.org). He can be reached via e-mail at ps@cfac.org.
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