EDITORIAL: The right to know

The great swinging pendulum of press liberty and government secrecy has lurched too far in one direction. It is time for a correction. Congress should pass and President Bush should sign a reasonable, measured shield law to push the pendulum back in the direction of the First Amendment and the legitimate powers of the Fourth Estate.

A sound shield law guards not “the media” but something much more vital - the public’s right to know. Guarding that right often requires confidential sources deep inside government. A measured law would not shield sources who perpetrate demonstrable and articulable harm to the country’s national-security interests. But it would rightly shield most others. Such a bill awaits Senate action now. It should be passed.

We endorse the Free Flow of Information Act in full knowledge of the genuine conflicts between national security and press freedoms in the toughest cases. We are also among the first to note it when media outlets abuse their privileges. We regarded the New York Times revelation of federal terrorist surveillance, for instance, as a wanton act of damage to a vital and completely legal national security program. But no realist and no proponent of limited government can watch the epidemic of American journalists subpoenaed, questioned, held in contempt or jailed - more than 40 in recent years - without wondering when the slow march of the Fourth Estate into an investigative arm of government reaches its ugly apotheosis. It is possible to have both liberty and security - indeed, that is the American way. Part of the answer lies in assuring sources who risk all to convey information vital to the public interest that the newsman who offers confidentiality will not be forced to divulge - unless a high crime with real national-security import has been committed.

The simple, constitutionalist reading of the First Amendment - “Congress shall make no law … abridging the freedom of speech, or of the press” - does not countenance the stripping of the core functions of the free press. It must end.

Yesterday, reporter Bill Gertz of The Washington Times appeared before a federal judge in California expecting to face questions he should not have to answer. U.S. District Judge Cormac Carney, a Bush appointee, declined to force Mr. Gertz to divulge his sources in a 2-year-old Chinese espionage story. “Today’s ruling is an important victory for our entire industry, the first in a long time to recognize a reporter’s rights to keep confidential sources,” said Executive Editor John Solomon. Press reports had indicated an intent to probe Mr. Gertz on the notoriously amorphous subject of newsworthiness. The subtext: What details of the story did Mr. Gertz consider newsworthy, and when did he consider them? On sources’ identities: What promises of confidentiality did he make, and why did he make them? This would have been extremely chilling.

The truth is that not all classified information is created equally. We live in an era of gross overclassification of government data - much of which belongs rightfully to the public but is kept secret for reasons of bureaucracy, territoriality, undue risk aversion or sheer inertia. Responsible media outlets can - and do - exercise discretion.

More than three-quarters of the nation’s attorneys general have called for the passage of a federal shield law. Attorney General Michael Mukasey opposes it on national security grounds. Mr. Bush has previously threatened a veto. It is time to let this pendulum swing back.