- The Washington Times - Tuesday, September 13, 2005

The odds are growing Congress finally will approve a national shield law as it reconvenes after summer recess. There are laws in most states to protect reporters from being forced to reveal anonymous sources, but they are increasingly needed on the federal level.

Over many years, media groups have failed to gain protection under a shield law. Now, like many other events during historic battles between the media and government, this turn in circumstances comes not because of strong public demand but a court ruling — which sent a reporter to jail.

It is difficult to understand why Judith Miller of the New York Times sits in jail for refusing to reveal the source for a story she never wrote. The prosecutor, meanwhile, has not divulged why he needs the information.

The politics that have drawn attention to the case clearly are visible. Democrats hope to entrap Karl Rove, the president’s top assistant, as the source of an illegal leak of the identity of a politically motivated CIA secret agent. A case that might have been lost in journalistic journals has gained Page One positioning because of politics.

There are a growing number of court threats against reporters who refuse to reveal news sources, but none have attracted the national attention given to Mr. Rove and the CIA agent case where noted columnist, Robert Novak, has printed a column revealing the agent’s name but has not been charged thus far with criminal action.

Thus we have a case where Judith Miller is imprisoned for refusing to divulge her source or sources for a story she never wrote, but Mr. Novak is free despite the revelation in his column. That almost sounds like secret police action.

Regardless of what happens in the case of the CIA agent, Valerie Flame Wilson, a federal media shield law would be a big step toward protecting the public’s right to know.

The news media have not done a good job convincing the public of the importance of full access to governmental information that does not include important security information. In part, this is due partly to decreased credibility for both the media and the government.

In years past, newspaper reporting was less accurate than today, and fewer errors were corrected. Today newspapers such as the New York Times and The Washington Post have admitted publicly they have run false stories by errant reporters. The admission of guilt should be a plus, but actually has damaged credibility.

The Free Flow of Information Act proposed by Sen. Dick Lugar and Rep. Mike Pence, both Indiana Republicans, differs from some shield law predecessors in not guaranteeing absolute protection. This has led to endorsement by the American Bar Association as well as all major journalistic groups.

The act would allow the federal government to compel disclosure of confidential sources only if:

“The general conditions for disclosure are met, if all nonmedia sources have been exhausted and testimony sought is essential to the case or investigation; and “disclosure of the identity of a source is necessary to prevent imminent and actual harm to the national security.”

In the last year, more than two dozen reporters have been threatened by courts seeking information obtained from confidential sources. Nine of those reporters have been sentenced or threatened by a court seeking to force them to reveal their confidential news sources.

Eighteen states have had their courts give reporters protection, and 31 states and the District of Columbia have “shield” laws.

Freedom of speech is a basic tenet of American democracy, but questions of freedom of information protection when reporters need to use anonymous sources and the whole subject of off-the-record comments long have been controversial.

It must be difficult to explain in Iraq why we jail a reporter for a story she never wrote, but we look at freedom of the press as a key element in creating a democracy.

The Freedom of Information Act went into the books during President Johnson’s regime, but it had little effect until this writer created the White House Office of the Director of Communications. Through this office, we were able to break many “security” log jams. But we did not solve the problem.

Until then, government departments routinely overclassified material, often to hide embarrassing information. That still is a bureaucratic temptation.

In the years since the 1970s, however, access to government information has increased vastly, often through court action at the request of reporters and media companies. More information is available to the public but not on a free-flowing basis. The one area where major change can be made is protection of anonymous sources by reporters on matters involving the federal government.

Responsible journalism resists using anonymous sources, but there are times when a story is not complete without such a vehicle. A “whistle-blower” often is unwilling to talk to a reporter without protection of anonymity.

Use of such sources also puts more pressure on the media to be certain of the veracity of the source.

If Congress doesn’t adopt a federal shield law this year when attention is brought to the problem through both a political controversy and through the mysterious jailing of a prize reporter, no law change can be expected for years to come.

Herbert G. Klein is a national fellow of the American Enterprise Institute, retired editor-in-chief of Copley Newspapers and former Nixon White House director of communications.

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