News — Members of the House of Representatives recently passed legislation giving reporters the right to protect confidential sources in most federal cases, and in doing so, said the right is crucial to a free and effective press.
Regarding the legislation, known as the Free Flow of Information Act of 2007, which was co-authored by U.S. Rep. Rick Boucher (D-Va.) and U.S. Rep. Mike Pence (R-Ind.), "The (proposed) law is not absolute, however, and reporters could still be compelled to disclose information on sources if that information is needed to prevent acts of terrorism or harm to the national security," says Dr. Larry Burriss, a First Amendment scholar and journalism professor at Middle Tennessee State University.
Although many may be more familiar with so-called "whistle-blower" statutes, which are laws that protect workers when they report incidents of wrongdoing such as fraud, waste and abuse by company officials, "shield laws" are the media world's closest equivalent for protection to help guard against retaliation.
"Shield laws," Burriss explains, "generally protect a reporter from having to disclose the identity of a confidential source. Most states have shield laws, usually with the proviso that the reporter must reveal his or her source if there is imminent danger to human life."
In 1972, the Supreme Court ruled that journalist-source relationships were not protected under the Constitution, and currently, reporters have no privileges to refuse to appear and testify in federal legal proceedings. The situation is different in state courts, Burriss notes, with 33 states, including Tennessee, having media-shield statutes and 16 other states having judicial precedents protecting reporters.
"The impetus for the recent shield-law legislation was more than 40 cases in the past three years, where reporters have been asked to identify sources or testify in federal criminal and civil cases," Burriss says. "The most famous case involved former New York Times reporter Judith Miller, who was jailed for 85 days in 2005 for refusing to identify which Bush administration officials had talked with her about CIA agent Valerie Plame."
Although the recent 398-21 decision by the House in favor of the shield legislation represents a significant and crucial victory for a free and effective press, the Free Flow of Information Act of 2007's future as it heads to the Senate remains uncertain.
"As you might expect, the White House has said President Bush will veto the bill if it reaches his desk," says Burriss, who also holds a J.D. from Concord Law School. "In addition, the Justice Department and the Office of the Director of National Intelligence opposed the legislation, saying it would make it nearly impossible to enforce federal laws pertaining to the unauthorized release of classified information."
Burriss says it's important to understand that the act does not protect a reporter so much as it protects the public's right to know what the government is doing. "Maybe some people are willing to just let the government do what it wants, using the theory that the government knows best. And that may certainly be true. Maybe the government does know best. But how will we really know," he asks, "unless we can be sure government officials are accountable to the people who elected them and whose interests they are supposed to be serving?"
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