Federal shield law needed

Janie Boschma

When watching television or movies – especially if it’s a crime show – I always seem to hear the phrase, “attorney-client privilege.” Often times, similar words and phrases will accompany this phrase, including “sanctuary,” “clergy privilege” and “doctor-patient confidentiality.” Police detectives will try to persuade attorneys and members of the clergy to tell them what their client or parishioner said to them in confidence.

Now, for the person conducting the investigation, this can be extremely frustrating and difficult because those on the other side of the interview will maintain it is unethical to betray the trust they have built with their client or patient.

Ethics aside, let’s take a look at consistency. If attorneys and other members of society have the privilege to not give up this confidential agreement, why shouldn’t journalists have the privilege to not give up their sources? In the last few years, the American media has dealt with this issue, and finally, an end to the debate could be just two votes away from becoming a reality.

On Oct. 4, members of the U.S. Senate Judiciary Committee passed the Free Flow of Information Act of 2007 (S.B. 1267) with a vote of 14-3, a bill that would create the first federal shield law. This bill would protect journalists from being forced to reveal the identity of their sources as well as from giving up their notes, documents and/or footage to the courts.

The one thing the Senate bill would not protect journalists from, however, is from being required to submit such information if they – the reporters themselves – observed illegal activity first hand.

The U.S. House of Representatives passed its own version of the Free Flow of Information Act (H.R. 2102) Tuesday with a vote of 398 to 21, making this the first federal shield bill to reach this level in the legislative process.

Designed to help journalists protect the identities of their confidential sources, the House bill calls for “a qualified privilege and would aim to defend the public’s right to speak out and to promote the public’s right to know,” according to an Oct. 11 article in SPJ Leads, a weekly online publication from the Society of Professional Journalists.

As a journalist myself, I definitely understand the need for such a federal shield law. Sometimes one cannot uncover the truth without having to talk to someone anonymously. While some journalism professors will tell you this can be unethical, there are cases in which it’s probably the only way to get the story. I agree that a story loses some of its credibility if the reporter uses quotes from confidential sources, but by getting essential background information from someone who might otherwise not talk to you could make a big difference.

Take the quintessential example of confidentiality in journalism – the Watergate scandal. Almost any American journalist will be able to tell you the story of Bob Woodward’s relationship with “Deep Throat,” whom we now know to be the FBI’s former No. 2 man Mark Felt. Many political scholars and journalists would also agree that if it would not have been, in part, for the investigative work of Woodward and Carl Bernstein, President Nixon would probably not have resigned.

But this issue is not so much about using confidential sources as it is about having to reveal those sources or face some rather dire consequences. Since 1984, 17 U.S. journalists have been jailed for their work, according to the SPJ. The most highly publicized cases involved former New York Times reporter Judith Miller and Josh Wolf, a San Francisco-based independent journalist. Miller spent 12 weeks in jail for refusing to reveal a source, while Wolf spent 226 days behind bars for refusing to hand over footage he shot during the 2005 G-8 economic summit.

While 49 states currently have shield laws or operate under court rulings that grant journalists “privilege,” those only apply to state and local cases and not to those on the national level, according to SPJ’s national Web site.

Miller said she believed it to be unethical to give up her sources to whom she promised confidentiality, and I agree. If I give my word to someone that I won’t use a piece of information or won’t attribute it to him or her, I should be able to keep my word without worrying about whether doing so might lead to me ending up in jail or being indicted to appear before a grand jury.

With that said, there will be times when someone I’m interviewing will say, “Now this is off the record,” or “This is not for publication,” and if I know I can find the information from another source, I might agree. However, if it’s not something I really need to know, I’ll ask them not to tell me.

It’s human nature for those in power to want to remain in power and if it means having to stretch the truth a little in order to get there, some won’t bat an eyelash to do so. In the same way, those who work for such people are most-likely going to be afraid of losing their jobs if they reveal what is really going on.

Because of this, and in order to maintain the trust that journalists build with their confidential sources, it is essential for lawmakers to enact a federal shield law. Perhaps then we will see more instances of “journalist-source” confidentiality on television.