The federal government is as close as it has ever been to passing a shield law that responsibly protects reporters from revealing sources to law enforcement agencies that can't do their own work. It's a law that has long been needed and that President Obama has supported.
Matters are moving quickly. Last week, the Senate Judiciary Committee modified the Free Flow of Information Act of 2009. A vote there is possible this week and the full Senate could take it up this month. A version of the bill has already passed in the House.
Committee members, including Sen. Charles Schumer, D-N.Y., have been working with news media representatives to craft a bill that meets the country's legitimate national security needs while also protecting journalists' First Amendment rights. According to the Associated Press, last week's revisions would:
* Require a test in which a court would weigh the public interest in the news story at issue.
* Clarify that anyone engaging in activity not protected by the First Amendment could not claim the privilege of a shield against prosecution.
* Adopt review and appeal procedures, including a review of protected material, under seal.
* Cover only individuals who are engaged in journalism, with the intent to engage in journalism at the inception of the activity.
* Make clear that communications providers should not comply with an order to produce information until enforced by a court or authorized in writing by a covered person.
* Clarify that the bill does not pre-empt state laws governing defamation, slander and libel, does not modify grand jury secrecy laws and does not modify the Foreign Intelligence Surveillance Act.
These are reasonable changes, and do nothing to further damage the wounded heart of the matter: that journalists' work is specifically protected by the First Amendment, that such work is crucial to the functioning of democracy and that except under limited circumstances, they should not be compelled to reveal their confidential sources.
That's what occurred during the Bush administration when journalists were threatened with imprisonment and even went to jail because prosecutors were demanding to scour their notebooks. The cases, which included the outing of former CIA agent Valerie Plame, may have been important, but lacking a federal shield law, there was no ability to balance the demand for testimony against the essential public good of a free and vigorous news media.
Obama started his administration on a hopeful note in this regard, by reversing an odious Bush administration policy of denying all Freedom of Information requests when given any plausible pretext. Obama believes that the public should have access to public information and he ordered compliance.
Now it's time to enact a federal shield law. Most states, including New York, have such laws and there is no reason Washington should not. Senators need to move this legislation forward to a vote, reconciliation with the House version and, finally, a signature by the president.