Window of Opportunity for Government Openness

If it doesn't bother you that the government can prosecute and jail journalists for refusal to divulge the names of their confidential sources, does it give you pause that the government can secretly monitor their phone calls?

If you believe in the necessity for private citizens to freely obtain public information related to their interests, then you should hardly take comfort in any effort to suppress the news media, regardless of what you think of Dan Rather or Rush Limbaugh.

As a proposal to protect reporters from government bullying languishes in Congress, the FBI is admitting that it improperly acquired the phone records of New York Times and Washington Post staffers in Indonesia in 2004. Though the bureau apologized last week for that overreach, it said just two years ago that it reserved the right to seek reporters' phone records in the process of investigating national security leaks.

The feds in general don't stop there. Dozens of journalists in recent years have been subpoenaed, questioned, prosecuted and even jailed as authorities have tried to pry them away from their pledges of confidentiality to sensitive sources of news. The federal government cannot seem to accept the fact that some information of vital importance — often embarrassing to government — has to be divulged anonymously lest the source be fired, sued or worse.

The vast majority of states, including Indiana, understand. They have shield laws.

Contrary to alarmist depictions by their critics, shield laws are far from absolute. The one awaiting action in Congress after the August recess is no exception. It specifically allows for disclosure of sources when a court has determined that national security is indeed at stake. And in the way of allaying another purported fear, it defines "journalist" as a working news-gatherer, not someone making frivolous or malicious forays into public business under the false cloak of the profession.

Championed by Rep. Mike Pence, R-Ind., and Sen. Richard Lugar, R-Inc., the Free Flow of Information Act passed resoundingly in the House but ran into a filibuster in the Senate, nine votes short of the 60 needed to bring it to the floor.

Breaking the stalemate will not be easy. Saying no to the executive branch in a time of war is not to be done lightly; but neither is the vital role of the free press to be taken for granted. Legislation that asks government to get a court order before criminalizing a citizen who carries a notebook is difficult to characterize as extreme. Jailing journalists, or making them fear jail if they encourage whistleblowers, is impossible to reconcile with the First Amendment.

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