From an editorial Monday in the Los Angeles Times:
The notion that society benefits when journalists are able to promise confidentiality to news sources isnt a radical idea. The vast majority of states provide some protection for reporters from having to identify sources who request anonymity, and long-standing Justice Department regulations require government lawyers to try to obtain information from other sources before issuing subpoenas to journalists or seeking to acquire their telephone records.
Yet attempts to write such protections into federal law have repeatedly foundered, most recently because of a concern in Congress that a federal shield law would protect not only journalists but also organizations such as WikiLeaks that indiscriminately and perhaps irresponsibly disseminate classified information. But support for a shield law surged after it was revealed that the leak-obsessed Obama administration had obtained the telephone records of Associated Press reporters and secured a warrant to read the emails of a Fox News correspondent.
The Senate Judiciary Committee has approved a proposed Free Flow of Information Act that garnered support from all 10 of the committees Democrats and three of its eight Republicans. It would provide considerable protection for journalists who promise confidentiality in order to publish information of public concern.
The bills centerpiece is robust judicial review of attempts by the federal government to force journalists to disclose the identity of anonymous sources or documents. A judge could approve a subpoena if the information being sought was essential to the resolution of a criminal or civil case and the government had exhausted other possible sources for the information. But in doing so, the judge would have to weigh the public interest in compelling disclosure against the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.
Some critics claim that the Senate bill protects only the mainstream media. Thats an exaggeration. The committee adopted an amendment by Sen. Dianne Feinstein, D-Calif., that defines the beneficiaries of the legislation more narrowly than we would prefer, but the bill would still protect employees of a wide variety of news organizations as well as freelancers and college journalists. We also would prefer language allowing a judge to extend the privilege to a WikiLeaks-like organization in the interest of justice.
Ideally, the shield law backed by the Judiciary Committee would be improved in the ways we have suggested. But even in its present form it would represent a victory for both a free press and an informed citizenry.
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