Wasden, other a.g.’s stand up for reporters

From the IdahoStatesman.com

Forty-one attorneys general — including Idaho’s own Lawrence Wasden — support a federal shield law for journalists.

And on Monday, they wrote a letter to key senators, urging them to get moving on a shield law.

As the a.g.’s point out, shield laws that allow reporters to protect the anonymity of unnamed sources “advance a public policy favoring the free flow of information to the public.” Idaho and 48 other states already have shield laws, but a.g.’s make a strong argument on the need for a federal law.

“By exposing confidences protected under state law to discovery in federal courts, the lack of a corresponding federal reporter’s privilege law frustrates the purposes of the state-recognized privileges and undercuts the benefit to the public that the states have sought to bestow through their shield laws,” the attorneys general say in a letter to Senate Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky. Scroll down for the full text of the letter.

A federal shield law has made considerable headway in Congress. The House passed a version of the bill in October on a 398-21 vote (Idaho Rep. Mike Simpson voted yes; Rep. Bill Sali voted no). The Senate bill received a 15-4 yes vote in the Senate Judiciary Committee — but that was almost nine months ago.

Credit to Wasden and 40 other attorneys general for focusing some attention on this issue.

(In the interest of full disclosure, I wrote a letter on the Statesman’s behalf last week, urging Wasden to support the federal shield law.)

The text of the letter from the attorneys general:

We, the undersigned Attorneys General, write to express our support for the Free Flow of Information Act (S. 2035). The proposed legislation would recognize a qualified reporter’s privilege, bringing federal law in line with the laws of 49 states and the District of Columbia, which already recognize such a privilege. The Senate Judiciary Committee reported S. 2035 favorably on October 4, 2007, by a vote of 15-4. The House passed a
similar reporter’s privilege bill, H.R. 2102, by a vote of 398-21.

Justice Brandeis famously referred to the important function the states perform in our federal system as laboratories for democracy, testing policy innovations. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Reporter shield laws, which have been adopted — through either legislation or judicial decision — by every state but
one, must now be viewed as a policy experiment that has been thoroughly validated through successful implementation at the state level.

The reporter’s privilege that is recognized by the laws of 50 United States jurisdictions rests on a determination that an informed citizenry and the preservation of news information sources are vitally important to a free society. By affording some degree of protection against the compelled disclosure of a reporter’s confidential sources, these state laws advance
a public policy favoring the free flow of information to the public. An overwhelming consensus has developed among the states in support of this public policy, and United States Justice Department guidelines, on which the current legislation is largely modeled, likewise recognize the interest in protecting the news media from civil or criminal compulsory process
that might impair the news gathering function. Nevertheless, the federal courts are divided on the existence and scope of a reporter’s privilege, producing inconsistency and uncertainty for reporters and the confidential sources upon whom they rely.

By exposing confidences protected under state law to discovery in federal courts, the lack of a corresponding federal reporter’s privilege law frustrates the purposes of the state-recognized privileges and undercuts the benefit to the public that the states have sought to bestow through their shield laws. As the states’ chief legal officers, Attorneys General have
had significant experience with the operation of these state-law privileges; that experience demonstrates that recognition of such a privilege does not unduly impair the task of law enforcement or unnecessarily interfere with the truth-seeking function of the courts. The sponsors of S. 2035 have sensibly sought to strike a reasonable balance between these important interests, as the states have done, and we are confident that the legitimate concerns for national security and law enforcement can be addressed in the court procedures for evaluating a claim of privilege.

We urge you to support the Free Flow of Information Act and to enact legislation harmonizing federal law with state law on this important subject.

Thank you for your consideration of our views.

From the IdahoStatesman.com

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