It's like putting training wheels on a Mack truck.

It should be totally unnecessary, but since the U.S. Supreme Court gutted the free press provision of the First Amendment with its 1972 Branzburg v. Hayes decision, I guess we'll have to settle for unenthusiastically supporting a bill that would slap a patch on the Constitution.

A little more than a week ago, Republican Sens. Richard Lugar of Indiana and Arlen Specter of Pennsylvania introduced a bill dubbed The Free Flow of Information Act of 2006. It is a watered down version of the federal reporter's shield bill that languished in the previous session. Even this one may prove too hard to swallow for a majority.

The bill sets out guidelines for when a journalist can be dragged into federal court and ordered to reveal his sources, confidential or not, under the threat of contempt of court and a lengthy incarceration.

By its very nature -- defining who is a professional journalist, balancing the public interest in newsworthy matters against the public interests in safety and national security and unauthorized disclosure of "properly classified" information -- it is arguable that the bill designed to protect journalists is in and of itself an abridgement of freedom of the press.

After all, the Founders' view of the press was much different from ours today. Benjamin Franklin was a professional printer, not a professional journalist. Pamphleteers wrote under pseudonyms, making not only their sources but the writers themselves confidential.

But, under the current state of case law, the reality is that more than 30 reporters have been subpoenaed or questioned about their sources or news stories in the past two years alone, which poses a serious threat to the public's ability to learn of newsworthy developments in their government, in business, in foreign affairs and in society in general.

How many people are willing to jeopardize their careers and livelihoods if their whistle-blowing will be kept confidential only if the reporter is willing to go to jail to keep his word?

"American democracy can't function unless there is a free flow of information that arms citizens with the facts," says David Westphal, co-chair of the American Society of Newspaper Editors' Freedom of Information Committee, of which I am a member. "It's important that reporters be given the greatest freedom possible to dig up those facts, without fear of a prosecutor's subpoena."

The board of directors of ASNE has endorsed the bill. It has been applauded by the Newspaper Association of America. The Reporters Committee for Freedom of the Press gave the bill a cautious backing, saying it is better than nothing.

One plus is that the bill applies only in the federal arena and does no harm to the 31 state shield laws already in place, such as Nevada's.

If the bill were law now, it would have a bearing on a number of criminal and civil cases. It could have come into play when New York Times reporter Judith Miller was jailed for 85 days for at first refusing to testify about sources relating to the disclosure of the name of CIA operative Valerie Plame, even though Miller had not personally written about Plame.

There is a strong argument that naming Plame was not in itself a criminal act. In fact, no one has been charged with violating any national secrecy laws. Former vice presidential aide Scooter Libby is accused of lying to investigators.

The bill spells out that in order to question a journalist about his sources there must be "reasonable grounds, based on an alternative, independent source, to believe that a crime has occurred, and that the information sought is critical to the investigation or prosecution, particularly with respect to directly establishing guilt or innocence ..."

Other sections require various balancing tests to be performed by appointed federal judges, which puts too much power in their hands.

If the bill passes and federal judges are required to weigh the public's right to know vs. some presumed or projected harm, I just hope they keep in mind the strong dissent of Justice William O. Douglas in that Branzburg case.

"The press has a preferred position in our constitutional scheme not to enable it to make money, not to set newsmen apart as a favored class," he wrote, "but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people ..."

Thomas Mitchell, editor of the Review-Journal, writes a column on the role of free speech, free press and public access. He may be reached at 383-0261 or via e-mail at tmitchell@reviewjournal.com.