It's Time the U.S. Government Stops Jailing Reporters

After decades of promoting government secrecy and obfuscation through its collective inaction, the U.S. Congress is on the cusp of passing a federal “shield law” that would protect reporters from going to jail for refusing to divulge confidential sources.

Such sources are used sparingly by news organizations but are an essential tool at ferreting out government corruption, corporate criminal wrongdoing and all manner of scandals that American citizens need to know about.

Last week, the House Judiciary Committee unanimously approved a federal shield law whose congressional champions include Southwest Virginia’s Rick Boucher, an Abingdon Democrat who has been a representative for 14 terms.

We’ve been there before with a federal shield law, except this time there is no George Bush in the White House to assault the public’s right to know.

In 2007, this bill passed the House 398-21. When was the last time 398 representatives voted for anything?

That shows you the bipartisan nature of this legislation, which would not protect reporters if national security or other life-and-death matters were involved.

The Senate did not consider the shield law bill in 2007, however, because “George Bush had threatened to veto it and they weren’t sure they could get 60 votes for cloture,”
Boucher said in a telephone interview last week. “This president [Obama] has said he supports extending a privilege to reporters to refrain from identifying anonymous sources.”

Boucher predicts the bill will garner way more than 60 Senate votes and soon be on President Obama’s desk for a certain signature.

Make no mistake, though: This bill is not for reporters; it’s for you.

While the thought of reporters wearing jail-orange jumpsuits and flip-flops might bring a smile to some of your faces, it’s not in your best interest. Threatening reporters with arrest chills the willingness of government and corporate whistleblowers to come forward with information of vital importance to this nation. Potential sources’ natural instincts would be that reporters would rather rat them out than to face jail time. (Most reporters would go to jail and keep silent.)

“If at the end of the day a reporter can be placed in jail for refusing to divulge a confidential source, that fact alone has a tremendous chilling effect on the free flow of sensitive information to the public and the ability of the public to take corrective action on matters of public concern,” Boucher said via telephone.

The Bush presidency arguably produced the most secretive White House in history and, inarguably, the greatest assault on the public’s right to know. Attorney General John Ashcroft in 2001 issued an unprecedented directive that instructed federal agencies to think long and hard before disclosing government information. Ashcroft also vowed to defend denials that bureaucrats made under the Freedom of Information Act (FOIA).

Obama’s attorney general, Eric Holder, did just the opposite recently. He issued a memo rescinding the “Bush administration’s standard favoring withholding information” and instead said “government agency records should be presumed public,” according to the Reporters Committee for Freedom of the Press.

“The Holder memo is a refreshing change from the disastrous standard set by former Attorney General John Ashcroft in 2001,” RCFP Executive Director Lucy A. Dalglish said in a press release. “We hope it empowers federal employers who manage these public records to improve their services to the taxpayers who request them.”

“… [T]he disclosure obligation under the FOIA is not absolute,” Holder wrote March 19. “The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, ‘The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.’ ”

That’s the general standard that drives any administration with nothing to hide. And it’s the standard currently embraced by an overwhelming majority in the House and Senate, regardless of whether an R or a D follows their names.

“This is not for the benefit of reporters,” Boucher said. “It really is to protect the public’s right to know.”

Since 2001, Boucher said, “we have seen a virtual cascade of instances in which federal prosecutors have tried to use reporters as part of their criminal law investigative efforts. Rather than rely on the FBI and regular federal investigative authorities, they’re taking shortcuts and using reporters in order to try to obtain sensitive source information. All of that has a tremendous chilling effect on reporters’ willingness to use confidential sources and on the willingness of confidential sources to trust reporters.”

Could you imagine if Richard Nixon 37 years ago had ordered Bob Woodward of The Washington Post to reveal Deep Throat or go to jail?

That such a scenario could happen without a federal shield law is a travesty that Congress finally appears poised to resolve for the good of the citizenry.

J. Todd Foster is managing editor of the Bristol Herald Courier and can be reached at jfoster@bristolnews.com or (276) 645-2513