Protecting reporters and the public
Reporters in America are taking almost as much fire as reporters in Iraq. Two of them are about to go to jail for refusing to reveal a confidential source. Another just spent six months under house arrest for the same crime. There’s only one solution: a federal shield law that protects reporters from overzealous prosecutors.
We don’t believe that privilege should be absolute. Federal courts, unlike state courts, deal with matters of national security. And journalists should concede that in some cases — rare but real — their privilege has to yield to the common good.
But the principle needs to be established in law: except in those rare cases, the public interest is best served by an aggressive press corps that can keep its promises to secret sources.
This issue has been simmering on a back burner for years, until it boiled over in the case of Judith Miller of The New York Times and Matt Cooper of Time magazine. Both are now facing jail time for refusing to testify before a federal grand jury investigating how the name of an undercover intelligence agent, Valerie Plame, surfaced in a column by Robert Novak.
The cost of jailing Miller and Cooper would be very high: Investigative reporters would be crippled, promises of confidentiality would be suspect, sources would be scared and wrongdoers would be relieved.
We are not investigative journalists, but we did have one instructive experience. While Steve was covering the White House for The New York Times during the Reagan administration, congressional staffers wrote a report revealing key details of the Iran-contra affair. Republicans senators, trying to protect the White House, suppressed the document.
An anonymous source provided Steve with a copy. The Times splashed the story across page 1 and published two pages of excerpts. Without a promise of confidentiality, the report would have stayed buried and the public would have stayed ignorant.
A federal shield law could come about through “common law” as defined by the courts. In 1975, Congress enacted Rule 501 of the Federal Rules of Evidence, inviting the judiciary to identify cases where, based on “reason and experience,” certain witnesses should be exempt from giving testimony.
Since then, judges have outlined three categories of privilege: lawyer-client, therapist-patient and husband-wife. It’s hard to argue that therapists are more important to an effective democracy than journalists.
In fairness, however, there is one problem. Lawyers and therapists are easily identified. Either you have a license to practice in these professions or you don’t. Likewise, spouses are either legally married or not. But defining a journalist is more difficult, particularly in the age of blogs.
There is ample precedent for a legislative solution. Thirty-one states plus the District of Columbia have already passed shield laws, and a bipartisan proposal has been introduced in the Senate by Republican Richard Lugar and Democrat Chris Dodd.
Here’s the rub: their bill would grant an absolute privilege to journalists when it comes to protecting confidential sources. That might work on a state level, but not on the federal level. In concurring with Judge Sentelle, Judge David Tatel wrote that certain leaks of information, such as the design for a nuclear weapon or plans for a military strike, could cause harm “far in excess of their news value.”
We agree with Judge Tatel. The nation needs a strong shield law that places the primary emphasis on the public’s right to know. But it must also recognize, in extreme cases, the public’s right to remain safe. A bill balancing those interests would serve the national interest, and might actually have a chance for passage.
Steve and Cokie Roberts can be contacted by e-mail at stevecokie@gmail.com.