After waiting nearly 40 years for Congress to protect journalists' right not to disclose confidential sources, news organizations -- and the public they serve -- can't complain too vociferously about a brief postponement last week of a Senate Judiciary Committee vote on a "shield law" approved by the House in March.
Still, the Senate's sluggishness in requiring federal courts to respect a privilege recognized by two-thirds of the states is disappointing. So is the Obama administration's failure to provide support for allowing a judge to decide, in national security cases, whether the public interest in forcing a reporter to violate a vow of confidentiality outweighs the importance of the news-gathering at issue. This "balancing test" in the bill is crucial if prosecutors are to be prevented from exaggerating the harm that will result when a reporter honors such a pledge.
Like our readers, we prefer that the names and affiliations of news sources be made public. But in some cases the only way to obtain information of vital public interest is to promise confidentiality to a source. That should come as no surprise to public officials who sometimes take testimony in closed session or review the work of law enforcement agencies that rely on confidential sources. Confidentiality may not be desirable; it is, however, sometimes necessary for society to root out misconduct or corruption. That reality has been slow to dawn on Congress, and the Supreme Court in 1972 unwisely refused to find protection for confidentiality in the 1st Amendment.
The long wait seemed to be over last Thursday when the Judiciary Committee took up the Free Flow of Information Act of 2009, but the legislation wasn't approved. Worse, the committee added an amendment limiting the reporters' privilege to employees of news organizations or freelancers under contract -- a restriction that excludes bloggers and many college journalists.
Sen. Patrick Leahy (D-Vt.), the committee chairman, blamed the delay on Republicans. But the bill's progress also has been complicated by mixed signals from the Obama administration about an idea the president endorsed during the 2008 campaign. In his confirmation hearings, Atty. Gen. Eric H. Holder Jr., while supporting a "carefully crafted" shield law, said he wanted to ensure "that we will still have the capacity to protect the national security and to prosecute any leaks of intelligence." Sen. Dianne Feinstein (D-Calif.), a member of the panel, also is concerned about leaks. But the bill allows for disclosure of a source's identity if the alternative would create a "significant and articulable harm to the national security."
That's a level of protection that, if anything, tips too far away from the national interest in protecting anonymous sources, as Feinstein and other committee members should recognize. Nevertheless, we appreciatethe need for compromise and accept this as a reasonable one. The panel and the entire Senate should approve the shield legislation with the balancing test intact. If Obama's advisors object, he should overrule them and sign the bill.