In recent years, more than 40 journalists have been questioned in federal criminal and civil court proceedings about their confidential sources, notes and stories. In too many cases the journalist was the first stop for the lawyer seeking information.
The practice threatens to turn reporters into de facto investigators for the court, required to reveal sources of information they obtained only by promising to not say who told them. The Abu Ghraib prison scandal and the conditions at Walter Reed Army Hospital are stories that began with confidential sources.
Why exempt reporters from the citizen's duty to provide information needed in court proceedings? Do journalists think they're above the law?
No, but in this instance two important values collide: the public's interest in fair trials and our democracy's need for a free flow of information about important matters. A sensible law would take both these values into consideration.
The Free Flow of Information Act now being considered in Congress would do that. Sen. Lindsey Graham, R-S.C., is among the co-sponsors.
The proposal is based largely on procedures developed and used by the U.S. Department of Justice. But the voluntary procedures don't apply to special prosecutors and civil litigants. This proposal would make them mandatory. It would prevent reporters from being forced to reveal confidential sources unless a judge weighed the importance of disclosure and found it sufficient to override the public interest in gathering news and maintaining the free flow of information.
The proposal contains two important features:
1. It requires the party seeking the reporter's information to first go to all others from whom the information might reasonably be obtained.
2. It defines the circumstances under which reporters could be compelled to disclose confidential information: if it is necessary to prevent imminent harm to national security, to prevent death or significant bodily harm or to identify a person who has revealed significant trade secrets or certain medical or financial information in violation of the law. And the request must be narrowly tailored_no fishing expeditions.
Both fair trials and a free flow of information are fundamental American values. The proposed law balances them well. Congress should enact it.
