The credibility of the news media in America is at a low ebb, with some justification, so this is an inopportune moment to ask for special privileges for the Fourth Estate. Yet the imminent jailing of two journalists from Time magazine and The New York Times for protecting what is widely said to be a Bush Administration source who leaked the name of a CIA agent requires action. Some 31 states have shield laws for journalists. It's now time for a federal shield law as well.
America grants legal exemptions to its citizens reluctantly, but it does grant them. Lawyer-client, clergy-laity, doctor-patient, and husband-wife relationships are all protected under the law, with limits on what testimony prosecutors can compel. Journalists claim the same treatment for their relationship with sources under the First Amendment, arguing that a greater good for society comes from their freedom to investigate matters in the public interest.
The Supreme Court has never recognized a First Amendment privilege, but Justice Dept. guidelines do instruct prosecutors not to go after reporters except under extreme circumstances. That's precisely the nature of the state shield laws. The severity of the crime and the availability of other sources determine whether journalists must testify. The privileges under state shield laws are not absolute.
This reasonable balance test of the public interest should now be extended to the federal level. It may very well be that even under a federal shield law, Time magazine writer Matthew Cooper and Times reporter Judith Miller could be called to testify before a grand jury if someone's life had been placed in jeopardy. But this appears not to be the case. It's not even clear that a crime was committed. The prosecution of Cooper and Miller fails to meet the balance test.
Recent scandals have tainted the reputation of the press, which must regain the trust of this country by upholding strict ethical and fairness standards. But it still performs a vital function for society. While it may be difficult to define who is and isn't a reporter in this age of blogs, this shouldn't stop Congress from passing a federal shield law.