Last week, a three-judge federal appeals panel brought journalists Judith Miller and Matthew Cooper one step closer to jail for shielding their sources from a grand jury investigation. That ruling should remind Congress of the need for a federal law protecting the press during criminal investigations. No journalist should have to choose between upholding his or her professional ethics and serving time in jail.
A grand jury investigating the leaked identity of undercover CIA officer Valerie Plame ordered Miller and Cooper to reveal their sources. Both journalists have refused, citing their obligation to protect confidentiality agreements.
Nearly every state affords journalists some protection from similar prosecution. Those laws seek a sensible balance between the freedom of the press and the interests of justice. Far from giving journalists blanket immunity, most “shield” measures wisely allow for situations in which justice takes precedent.
Sen. Richard Lugar, R-Ind., and Reps. Rick Boucher, D-Va., and Mike Pence, R-Ind., have already introduced bills to give journalists federal protection from prosecution. Their measure includes prudent exceptions when journalists’ disclosures are central to a criminal investigation.
A federal “shield” law might not rescue Miller and Cooper from their predicament, but it would help preserve the use of anonymous sources by journalists. Compelling reporters to disclose their confidential sources would effectively end anonymous leaks from government bureaucrats and elected officials.
Those leaks play a critical role in keeping the government transparent and honest. While the best example might be the Watergate source, Deep Throat, more-recent cases are not hard to find. Some of the more-frightening Pentagon efforts to root out potential terrorists – at the expense of civil liberties – have ground to a screeching halt after a well-timed leak.
The press has long been called the “fourth estate” of a free society, the last line of defense from government abuses of power. That approving moniker has gone out of style since it was coined two centuries ago, but it should weigh heavily on the mind of Congress as it considers a federal “shield” law.
