Shielding Reporters 

Why the public's right to know is in jeopardy

By Representative Rick Boucher and Representative Mike Pence

Thomas Jefferson once said that "our liberty depends on the freedom of the press, and it cannot be limited without being lost." Freedom of the press is a cornerstone of our democracy, and our Founding Fathers understood that an informed citizenry is essential to keeping the government accountable to its people and in promoting honest and ethical conduct in our society.

Journalists play an essential role in informing our society. They not only report news and information to the public but also serve as watchdogs, investigating and exposing what are often illegal, unethical or dangerous activities by both public and private-sector actors. But to do that job effectively, journalists sometimes must rely on sources who do not want their identities revealed for fear of personal safety, retaliation, ostracism or extreme embarrassment.

Imagine a single mother who works at a factory and struggles to support her family on the hourly wage she is paid. Imagine she knows that there is a flaw in the product being made there—a flaw that could potentially put lives at risk. A reporter who has heard about possible problems at the plant seeks to interview her for a story that, by exposing the situation, has the potential to save lives and enhance public safety. Without a guarantee of confidentiality, the woman is unlikely to risk her job by speaking with the reporter. As a result, public safety suffers.

It is because of scenarios like this that 33 states and the District of Columbia have existing laws that protect reporters from the compelled disclosure in state court proceedings of confidential sources of information. Such broad-based support for assuring the confidentiality of journalists' sources at the state level lays bare the glaring lack of similar protections at the federal level.

During the past several years, more than 30 reporters have been subpoenaed or questioned in federal court proceedings about confidential sources.

Federal prosecutors are attempting to force journalists to reveal their sources rather than finding the wrongdoers through their own investigations. They have used the threat of jail to pressure reporters into violating the promises of confidentiality they made as a condition of receiving the information at the core of their stories and the criminal investigation. In some instances, reporters have been jailed for keeping their promises. These actions inevitably have a chilling effect on the willingness of reporters to rely on confidential sources and the willingness of sources to speak with reporters.

Action is needed to protect the promise of confidentiality from this unprecedented series of federal government challenges. The public's right to know hangs in the balance because if the identity of sources is not protected, many matters of public importance will not become known. Public corruption and corporate misdeeds will go uncorrected.

In many instances, the critical information that first alerts federal prosecutors to potentially illegal activity, or alerts civil litigants to the facts giving rise to a private civil case, is contained in a news story that could only have been reported upon assurance of anonymity to a source.

On May 2, 2007, we introduced the Free Flow of Information Act. It sets strict limits on the ability of the U.S. Department of Justice or a private party to compel the disclosure of confidential sources in federal court proceedings. It carefully balances the public interest in the free flow of information against the public interest in compelling testimony in highly limited circumstances involving grave risk to national security or imminent threats of bodily harm.

Our legislation was approved by a large, bipartisan majority on a vote of 398-21 last October. The Senate Judiciary Committee has approved similar legislation, and we will be working with our Senate colleagues to secure final passage of this measure.

By protecting reporters and their confidential sources, the Free Flow of Information Act will encourage whistleblowers to talk to journalists and expose wrongdoing. It will ensure that journalists can continue to do what they have done since our nation's founding—to exercise the freedom of the press to bring to light information on the most important issues of the day. As Thomas Jefferson recognized, our liberty and our democracy are dependent on a free and fully functioning press. Our bill will help underpin this nation's tradition of honoring press freedom as a hallmark of our open and informed society.

This op-ed is courtesy of Sunshine Week, a national initiative dedicated to the importance of open government in all its forms. Rep Boucher is a Democrat from Virginia, and Rep. Pence is an Indiana Republican.

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