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Hunterdon Review — Senators, stand up for a free press

Hunterdon Review, Clinton, N.J.
July 31, 2008

Barring procedural obstacles, the U.S. Senate is due to consider S.2035, “The Free Flow of Information Act,” also dubbed “the Shield Bill,” legislation intended to protect confidential sources and the public’s right to know.

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Hunterdon Review, Clinton, N.J.
July 31, 2008

Barring procedural obstacles, the U.S. Senate is due to consider S.2035, “The Free Flow of Information Act,” also dubbed “the Shield Bill,” legislation intended to protect confidential sources and the public’s right to know.

The House of Representatives approved a similar measure last October by an overwhelming margin, 398 to 21. Also last October, the Senate Judiciary Committee passed S.2035 by a 15-4 vote. Both the presumptive presidential nominees, Republican Sen. John McCain and Democratic Sen. Barack Obama, support the legislation, and the National Newspaper Association (NNA) and Newspaper Association of America (NAA) are two of more than 50 media organizations pushing for Senate approval now, before the legislative agenda becomes mired in congressional and presidential election politics.

In keeping with that push, in late June the Attorneys General from 42 states urged the Senate to act on S.2035, stating that the lack of one federal standard was “producing inconsistency and uncertainty for reporters and the confidential sources,” undermining confidential source privileges that are recognized in state laws and court decisions.

The NNA calls the federal legislation a response to a disturbing trend. Over the past four years, more than 40 reporters in the United States have been questioned or subpoenaed about their confidential sources. Two reporters were sentenced to jail or home confinement, and one reporter was held in contempt and faced fines of up to $5,000 a day for refusing to reveal her confidential sources.

The NNA notes that hauling journalists to jail or bankrupting them to reveal their confidential sources “is not the American way.” Nor does it do much for the image of America as a bastion of freedom, a light of democracy for the world, and a campaigner for freedom of the press as a fundamental political right of people everywhere.

According to the NAA, S.2035 is not “a free pass” for the press. The bill establishes a privilege that would be qualified, not absolute.

  • The bill provides exceptions requiring reporters to provide information to prevent acts of terrorism or other significant harm to the national security, to furnish eyewitness observations of a crime, and to provide information needed to prevent a death, kidnapping, or substantial bodily harm.

  • The bill establishes ground rules for when a reporter can be compelled to testify about confidential sources, and when a reporter can receive protection.

The NAA says such federal standards are desperately needed to provide uniformity and predictability in light of conflicting federal court opinions.

Further, the NNA emphasizes, the bill is not about protecting reporters: It’s about protecting the public’s right to know.

If government and private sector whistleblowers fear a reporter can be compelled to reveal their names, they won’t step forward, and important stories won’t be reported.

Without confidential sources, such stories as the conditions at the Walter Reed Medical Center, the Enron scandal, and steroid abuse in Major League Baseball would not have been known to the public – or to the Congress.

Freedom of the press is a cornerstone of our American system of government. The American people’s right of free speech would have limited meaning indeed unless the people have an equal right to know the truth about their government and public issues that affect their lives. The public’s right to know is severely damaged without a well-reasoned, universally recognized “shield law” to protect reporters from coercion by threats of jail and punitive fines unless they break their promise of confidentiality to news sources.

We call on our senators, Frank Lautenberg and Robert Menendez, to oppose any amendment introduced to weaken reasonable protections for investigative journalists, and to stand up for a free press when S.2035 comes to the Senate floor.

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