Daily Herald — Let Senate vote on shield law

Daily Herald, Provo, Utah
March 18, 2008

A single U.S. senator, Jon Kyl of Arizona, is blocking a bill aimed at protecting your right to know. We urge Senate leaders to step in and move the measure forward.

S. 2035, the Free Flow of Information Act, would establ

Daily Herald, Provo, Utah
March 18, 2008

A single U.S. senator, Jon Kyl of Arizona, is blocking a bill aimed at protecting your right to know. We urge Senate leaders to step in and move the measure forward.

S. 2035, the Free Flow of Information Act, would establish a federal "shield law" to protect journalists who must rely on confidential sources to reveal information of public importance. Many whistle-blowers are unlikely to alert the public if their names will be published. A source may, for example, risk retaliation from an employer.

The Senate Judiciary Committee passed the shield bill 15-4 in October. In the same month, a similar bill passed the full House 398-21, with all three of Utah's congressmen voting for it. Since then, however, the bill has languished in the Senate because of an arcane rule that allows any senator, for any reason, to place a "hold" on any bill. That's what Kyl is doing.

Kyl, a Republican, has long opposed the shield bill on the grounds that it would hamper investigation of leaks that endanger national security. He is mistaken; this bill safeguards security. By clarifying federal law, it will make it easier for authorities to go after genuine matters of national concern rather than engage in political witch hunts. If a confidential source can know something, then it is knowable to investigators as well.

Instead of going after leakers to punish them, government should focus on the problems the leakers reveal. The voters should never be kept in the dark.

Efforts by courts to force journalists to reveal confidential sources have already had a chilling effect on the public's right to know by discouraging whistle-blowers and intimidating reporters with jail time.

But if a court can order a journalist to reveal a confidential source's identity -- even when nobody disputes the truth of what the source has said -- the press will soon be viewed as a direct pipeline to the authorities, and people will cease to come forward with important information.

The cry of national security is a red herring that is put forward by those who prefer that government operate in the shadows.

The news media, for obvious reasons, do not wish to be seen as agents of the government. We may be imperfect, but we're the only bulwark you've got against secret government misbehavior. A free press, flawed though it may be, is the sole entity that can give you the tools you need to ensure that America remains a government by the people.

Forty-nine states and the District of Columbia have shield laws or equivalent regulations to protect journalists from government interference or from fishing expeditions by private attorneys in civil cases. Utah's Supreme Court recently adopted a strong rule protecting journalists and their sources. But there is still no federal shield law.

News gathering is a right under the First Amendment, but the Supreme Court has yet to agree on precisely what that means or to what extent it should be protected. Some federal judges have recognized that journalists' sources and notes need to be shielded. Other federal courts have not recognized this.

The gap was highlighted in a recent case. In a lawsuit, lawyers are trying to force former USA Today reporter Toni Locy to reveal confidential sources. A federal judge has levied potential fines, beginning at $500 a day and quickly rising to $5,000 a day, against her. And he has prohibited anyone else, such as her former employer, from paying the fines on her behalf. An appeals court has issued a stay on the penalty while she appeals, but obviously if the fines are levied, she will be forced into bankruptcy.

That kind of a hammer should not be available to intimidate journalists. The bill under consideration in the Senate provides a balanced standard for protecting the information-gathering process -- which the public needs -- while allowing exceptions in certain cases for law enforcement and national security concerns.

Sen. Kyl should withdraw his objections, which have been addressed in the bill. He has been urged to do so by colleagues, who have now turned to Senate leadership to break the logjam.

Powerful members of the Senate Judiciary Committee, including its chairman Sen. Patrick Leahy, D-Vermont, and Sen. Arlen Specter, R-Pennsylvania, have written Majority Leader Harry Reid and asked him to bring the bill to the Senate floor for debate and a vote. Whether they can overcome a foolish tradition that allows one senator to interfere with the entire body remains to be seen.

The House's overwhelming approval of a similar bill gives backers of a shield law some optimism about how S. 2035 would fare.

Right now there are people who have important information that would benefit the public. They need to know that federal law will offer them a reasonable amount of protection if they bring those facts to journalists -- and to the public.