Op-Ed: Act Now to Protect Public’s Right to Know

Often called members of the “Fourth Estate,” journalists have the responsibility in our democracy to gather information and relay it to the American people.  Reporters have informed us about corporate scandals – from Enron to Tyco to Martha Stewart.  And government whistleblowers – people who see unethical or otherwise inappropriate acts by government officials and who reveal them – frequently tell their stories to members of the press.  Keeping the flow of information free is not always a popular position, at least with those in government and the private sector who would prefer that wrongdoing go undetected.

But the real issue is not about the journalist – it is about the American people’s right to get information that they would not have access to if journalists were not allowed to speak to individuals on the condition of anonymity, and share that information with the public.

As Congress gets set to resume its legislative session after the August recess, it is imperative that one of its priorities be to protect the public’s right to the free flow of information.  The number of reporters who have been subpoenaed by federal sources or asked about their information, disturbingly, has skyrocketed in recent years, including such high profile cases involving Wen Ho Lee, the Los Alamos scientist who filed a lawsuit against the government for invasion of his privacy, and Valerie Plame, who was identified by an anonymous source as a CIA operative.

Recognizing the critical role that journalists play in an informed democracy, the American Bar Association has just adopted policy in support of a federal reporters’ shield law that protects the right of the media in appropriate cases to maintain the confidentiality of their sources.  Currently, 49 states have reporter shield protections, either through state law or judicial decisions.  However, these state laws offer no protection to a journalist who is subpoenaed in a federal lawsuit or investigation.

Why do some oppose such a shield?  Some say that it would interfere with the ability of federal officials to learn about potential national security or public health risks.  But the legislation now before Congress includes carefully worded waivers that would allow for the release of sources if the risk to national security or public health outweighs the public interest in protecting the free flow of information, assuming all other reasonable avenues of obtaining that information had been exhausted.  A federal statute would provide the clear guidance that both reporters and potential sources need regarding assurances that can be made about confidentiality.

The United States Senate and House of Representatives have but a few weeks until the end of this year’s session to act to ensure that the public’s right to know in our democracy continues to be protected.  Now is the time for them to act.