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WikiLeaks case shows need for federal shield law for reporters

The Cincinnati Enquirer argues that the federal shield law now in Congress, while providing for national security and fair trials, will strengthen the media in its quest to hold government and other powerful entities accountability and make it less likely that sources go to “fringe entities” such as WikiLeaks to protect their anonymity. -db

Cincinnati Enquirer
August 6, 2010

On the surface, it might seem that the recent WikiLeaks scandal, which involved classified military documents on the Afghanistan war being posted online, serves as an argument against a pending federal “shield law” protecting reporters from being forced to reveal confidential sources. But this incident illustrates why action by Congress to strengthen journalists’ legal options is more urgent than ever to help preserve and strengthen a free, vibrant press.

And that’s why the Senate should act soon to pass a federal shield law that’s been in the works for six years.

Shield laws might sound like an “inside baseball” topic that only journalists should care about. But they matter to all of us.

They help journalists cover real-life stories that Americans need to know about:

A member of Congress getting tangled up with lobbyists.

A bank playing fast and loose with mortgages.

A mayor putting people on the payroll who don’t belong there.

A factory cutting corners on safety.

A prosecutor violating ethical limits in pursuing a case.

These are stories that help you decide how you vote, how you spend, how you live.

Shield laws can help ensure that the information you need will get out to you – that reporters can’t be intimidated or harassed into keeping the truth under wraps.

They also can help ensure that these stories will be handled responsibly, within the confines of what’s legal and ethical.

A law with well-defined protections for legitimate news-gathering would clarify who is covered when, where, why and for what – the classic five “Ws” of journalism.

By serving as a check on those who would use their power to control information, it would enhance First Amendment protections for all of us.

The bipartisan bill in the Senate, S. 448, offers perhaps the best hope in years for a solution all sides can accept. The Free Flow of Information Act would let a reporter, subpoenaed to testify about sources to whom they have promised anonymity, ask a federal judge to quash the subpoena. The judge would decide by balancing the public’s right to know with a litigant’s need to know the identity of a source, according to certain, well-defined standards.

A majority of states have such laws, but legal standards, strength and scope differ among them. The resulting patchwork of protections doesn’t serve anybody well, particularly when it comes to major stories of national import.

A federal shield law could serve to bring state laws more into alignment, and it would ensure uniform procedures and standards among different federal jurisdictions.

Different types of cases would have different levels of protection, however, with cases of national security giving judges the greatest option to compel a reporter to identify a source.

But the law’s thrust would be to protect the disclosure of vital information that some in positions of power, whatever their motivations, do not want the public to know.

One example: David Ashenfelter of the Detroit Free Press reported that a federal prosecutor was being investigated for possible misconduct during a terrorism trial. A subpoena issued to learn Ashenfelter’s confidential sources has been hanging over his head for three years.

Sometimes, such litigation against a reporter sends a message to other journalists, and the threat of pressure to reveal sources can be chilling. Shield laws offer some welcome protection from pressure to suppress legitimate news reporting.

But what about WikiLeaks, in which a website disclosed 75,000 classified documents on Afghanistan that, among other consequences, identified individuals there and put them at grave risk of retaliation?

Paul J. Boyle, senior vice president of the Newspaper Association of America, argues that the bill, if passed, would make a WikiLeaks less likely to happen again, not more. The reason: The increasing use of subpoenas against reporters in recent years – and the resulting intimidation – has given leakers more incentive to supply materials to a fringe entity, instead of traditional news organizations governed by deeply ingrained professional and ethical standards, not to mention news judgment. Such organizations would have handled the Afghanistan information more responsibly.

So the specter of more WikiLeaks could help break the impasse Congress has found itself in over journalist protections. Sens. Chuck Schumer, D-N.Y., and Dianne Feinstein, D-Calif., are drafting an amendment to specify that the bill’s protections do not apply to such sites that do not engage in legitimate news-gathering activities. On Wednesday, Schumer said senators want to “remove even a scintilla of doubt” that a shield law would not protect a WikiLeaks from prosecution.

This definition could be tricky, however, and should by no means be allowed to become a federal determination of who is a journalist and who isn’t. As we’ve seen with the development of online and alternative media, such definitions are not immutable. Could a law passed by Congress be flexible enough to adjust to changing realities in journalism?

The proposed shield law isn’t about letting reporters violate privacy, security and ethical standards with impunity. It is about defining a careful balance of rights – and about giving judges the tools to ensure that balance.

And in our increasingly complex, litigious society, it is about recognizing the vital importance of a strong, honest, free press capable of laying out the facts in the public interest.

We urge our senators to support it.

Copyright 2010 Gannett

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