Protecting the public’s right to know

On May 2, “The Free Flow of Information Act” was introduced simultaneously in the House and Senate. Similar to current laws in 31 individual states, this legislation would shield news reporters from being compelled to reveal their sources when subpoenaed into federal court.

“This is not about protecting reporters,” explains Rep. Mike Pence R-Ind. “It’s about protecting the public’s right to know.”

That sounds a little slick. Isn’t that a lot like some politician saying he needs to raise your taxes “for the children”?

In fact, this bill is not mislabeled, at all. For too long the courts have taken the illogical stance that the press has a First Amendment right to print information, but that reporters who gather that information enjoy no guarantee of freedom and safety if some lazy federal prosecutor, instead of doing his or her own research after being tipped to a problem by a news report, decides to simply call in the reporter and demand that he or she “tell all” on pain of indefinite imprisonment.

What’s the problem, some will ask. Just tell prosecutors what they want to know: They’re the good guys, aren’t they?

But if would-be whistle blowers come to realize that reporters promising to keep their names secret in fact have their “fingers crossed behind their backs” — that they’ll sing like canaries at the first threat of trouble — this makes it enormously less likely that the next whistle-blower will risk unemployment or worse to slip ANY reporter information that proves vital to the public and embarrassing to the bureaucracy.

Without the willingness of reporters to protect their sources, we might never have read such stories as the ones about conditions at the Walter Reed Army Medical Center; the investigation of nuclear scientist Wen Ho Lee; prisoner abuse at Abu Ghraib … even the White House’s involvement in that little burglary at the Watergate.

The lack of a federal shield law has already resulted in reporters such as Judith Miller and authors such as Vanessa Leggett — not criminals themselves, merely people trying to root out the facts — spending months in jail for refusing to reveal their sources.

Over the past several years, more than 40 reporters and media organizations have been subpoenaed to reveal their sources, have faced demands for their notes and photos or otherwise become the target of prosecutors or civil attorneys trying to buoy their cases.

HR 2102 would still require the disclosure of sources if necessary to prevent imminent and actual harm to national security or to prevent imminent death or significant bodily harm. Nor would reporters be immune from legal action if they disclosed of certain trade secrets, individual health or financial information.

Gilbert Bailon, president of the American Society of Newspaper Editors, notes, “The First Amendment guarantee of a free press is threatened by recent trends in the courts. We support this legislation’s balanced approach to a federal shield law because it clarifies the role of all journalists and will allow us to better serve the public’s right to know.”

The House Judiciary Committee is expected to vote this week on HR 2102. This legislation has wide support — Nevada’s own Rep. Shelley Berkley is a co-sponsor — but will likely need a strong margin of victory in the committee to persuade the House leadership that HR 2102 merits time on the increasingly congested House floor before the August recess.

At last check, and unlike Rep. Berkley, the rest of Nevada’s congressional delegation has preferred to hang back from active sponsorship of the federal shield law.

It’s time for them to tell members of the House Judiciary Committee that this one is important.

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