PERHAPS AS EARLY as today, the Senate Judiciary Committee could report out a bill to create a modest privilege for reporters to protect their confidential sources in criminal and civil proceedings. Lawyers, priests, psychotherapists and others enjoy varying degrees of such protection for their confidential conversations; so do reporters in almost all state courts. Several recent cases -- the Valerie Plame investigation and the recently settled Wen Ho Lee civil lawsuit most prominently -- have served as reminders of the need for a shield in federal court as well. The issue is whether reporters or their employers should face jail or ruinous fines for doing what they have to do to bring the public the news it expects: honoring their promises of confidentiality to sources.
A bill sponsored by Republican Sens. Richard G. Lugar (Ind.) and Arlen Specter (Pa.) and Democrats Charles E. Schumer (N.Y.) and Christopher J. Dodd (Conn.) would not shield journalists in all situations; far from it. In criminal cases, it would allow prosecutors or defendants to subpoena reporters when they have exhausted alternative means of garnering needed information and when a judge finds disclosure, on balance, in the public interest. In civil cases, a judge could compel disclosure of a confidential source when it was "critical to the successful completion of the civil action" and "nondisclosure . . . would be contrary to the public interest" taking into account "the public interest in newsgathering and in maintaining the free flow of information to the widest possible degree about matters that enter the public sphere."
That free flow of information is what this is about. We don't pretend to be unbiased; representatives of The Washington Post Co. have advocated for the bill. But we firmly believe there's a larger interest here. History makes clear that critical stories, including the exposure of executive malfeasance that we remember as the Watergate scandal, have depended on the confidence of potential sources in journalists' willingness and ability to protect their identities. That ability is under threat. The result could be less reporting on government overreaching and wrongdoing -- and less of the kind of openness on which any democracy depends.