The Need for a Federal Shield

As a matter of self-interest, Americans need to appreciate the rising threat to the news media’s ability to provide a free flow of information about their government. Close to a dozen reporters around the nation face legal pressure to reveal sources, and some face the threat of jail terms. A federal appeals panel in the District of Columbia declined this week to spare Matthew Cooper of Time magazine and Judith Miller of The New York Times the prospect of being jailed for up to 18 months. They are refusing to testify about confidential sources to a grand jury investigating how the name of a covert intelligence officer was leaked to a conservative columnist.

This leaking is a potential crime, and while the reporters did not reveal the officer’s name, their digging after the leak is being construed by the courts as making them essential to the investigation.

Ms. Miller never wrote a story about the issue. Mr. Cooper wrote about the administration’s rumored political motives for unmasking the officer to the columnist Robert Novak. It remains a mystery whether prosecutors have tried to compel Mr. Novak’s testimony; he will not say.

The chilling possibilities for journalism at large are obvious as the case moves further along the appeals chain. Government officials with valuable information on matters of public interest may have second thoughts about trying to reach the public through trusted reporters. Journalists will more than ever have to weigh the risk of jail against the need to protect worthy sources, a practice with a long history of redounding to the citizenry’s benefit.

Honorable compromises respecting the tasks of both prosecutor and journalist have been worked out on state and local levels in the form of shield laws. In Washington, one good step would be passage of a federal shield law, based on a bill submitted by Representatives Mike Pence, an Indiana Republican, and Rick Boucher, a Virginia Democrat, and sponsored in the Senate by Richard Lugar, another Indiana Republican.

As unpopular and intrusive as the news media can be, surely the Congress elected by the people can protect journalism’s vital mission. Mr. Pence, a conservative who was a political talk-show host, offered a knowledgeable plea to his colleagues: “Nothing less than the public’s right to know is at stake.”*