Shield Law

This week several congressmen introduced a bill that would legislate a federal shield law for journalists. I stumbled across this in the New York Times on Thursday in the Op Ed section. I was surprised that this was the first I had seen or read of the bill - just a short opinion article buried in the back of the paper.

NY Times Article

The bill, called the Free Flow of Information Act of 2007, was introduced Wednesday by congressmen and senators of both parties (Democrats Rick Boucher, John Conyers and Christopher Dodd, and Republicans, Mike Pence and Howard Coble and Richard Lugar). The measure would confer a reporter's privilege, though only up to a point. As the opinion article revealed:

It is not a blank check. The bill would set reasonable criteria that would have to be met before unpublished information could be subpoenaed from reporters in a federal criminal or civil matter. Prosecutors would have to show that they had exhausted alternative sources before demanding information. They would need to show that the sought-after material was relevant and critical to proving a case, and that the public interest in requiring disclosure would outweigh the public interest in news gathering.

Like the reporter, I agree that this is a necessary measure to preserve freedom of the press, and the ability for the media to serve as our nation's watchdog. Journalists cannot be expected to serve as critical news-gatherers if sources are unable to trust that their confidentiality will be protected. At the same time, I think the bill is right to place some limits on the privilege it would offer us. If journalists are truly acting in the interest of society at large, then they should also understand that there are points when their confidential material should be revealed in order to serve the greater good.

I personally take some issue with reporters like Josh Wolf, who seem to stand on principle for a universal privilege that cannot hold up under the weight of pragmatic concerns. In his case, I don't think there was an overriding reason to protect the material he had gathered. If reporters are to have this privilege, they must also understand the reasons it has been given to them, and the limits of those reasons. Perhaps the best chance we have in obtaining a federal shield law is to show that we would not abuse it.