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President should support shield law

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The Tampa Tribune

Published: October 19, 2009

During the presidential campaign last year, then-candidate Barack Obama pledged his support for a strong federal shield law that would protect journalists under pressure from authorities to reveal the names of their confidential sources.

As a senator, he co-sponsored legislation to protect news gathering and thus the public's interest in learning what its government is up to.

But now President Obama's support has softened. He is backing a weakened version of the bill now before the Senate Judiciary Committee.

His change of heart is a mistake. He should stick with the House version that first passed in 2007 and passed again with overwhelming bipartisan support last March.

In general, the Free Flow of Information Act would establish federal protections for the press similar to ones that have long existed in Florida and most other states. It is carefully worded to avoid abuse and protect national security.

The House version would compel the testimony of a journalist only under certain conditions, such as preventing a terrorist attack. Disclosure also would be required if properly classified information is leaked and does "significant and articulable harm" to national security.

Importantly, a judge would make the decision whether the public's interest in compelled disclosure outweighs the public's interest in news gathering.

But the Obama administration's proposal significantly favors the government. It would require courts to order disclosure if the government claims the information is essential and there is no other way to get at it.

The proposal also puts an insurmountable burden on the reporter to show by "clear and convincing evidence" that there are "extraordinary circumstances" to justify protecting the source.

The Washington Post reports Obama insists the language is negotiable, and he should work with senators to complete an acceptable bill.

The president knows reputable reporters and broadcasters do their best not to rely on confidential sources, but sometimes there is no other way to tell an important story. Without the protections provided by the bill, journalists can be held in contempt of court if they don't tell a judge where they obtained sensitive information.

The possibility of forced disclosure has a chilling effect on corporate whistleblowers, officials fed up with unscrupulous bosses, and all sorts of people in places high and low who know things the public also needs to know.

Usually, journalists receiving secret tips are able to confirm the information independently. When they can't, they need the ability to go with the story and protect the source, whose career or safety could be jeopardized by exposure.

The House bill makes reasonable exceptions for information that could harm national security, expose important trade secrets or reveal someone's private health records.

It would generally prevent reporters from having to testify unless there is no other reasonable way to get vital facts, unless the reporter witnessed a crime or there is a reasonable belief that a crime has occurred.

It would assure a free and effective press, without which we can't expect to have a free and competent government.

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