2005 Debates in Congress

Journalistic Privilege: Confidentiality of Reporters' Sources
Should Congress Pass the Free Flow of Information Act?

In the summer of 2004, Federal prosecutor Patrick Fitzgerald subpoenaed two reporters - Judith Miller of the New York Times and Matthew Cooper of Time magazine - in connection with of an investigation into the possible illegal exposure of a covert Central Intelligence Agency (CIA) operative.

Both reporters refused to divulge their sources for information about who may have leaked the CIA agent's identity. In July 2005, Cooper agreed to comply with the court order after his source released him from the promise of confidentiality. Miller was jailed for 85 days for her unwillingness to testify.

In February of this year, Senator Richard Lugar (I-NR) and Representative Mike Pence (IN-R) introduced legislation to "maintain the free flow of information to the public" by essentially codifying Justice Department guidelines for issuing subpoenas to members of the news media.

The guidelines, in operation since 1973, specify conditions that must be met by the government to compel the identity of confidential sources.

Supporters of the legislation maintain that preserving the use of confidential sources is critical to the press's role in a democracy.

Opponents, including the George W. Bush Administration, counter that journalists are not a sanctified class that is above the law or deserving special rights or privileges; they are citizens like everyone else.

On one point both sides may be able to agree: Journalists' privilege rests on the issue of responsibility; that is, the obligation of reporters to stand by the information and assertions they put before the public. The best way to protect this central tool may be to use it more sparingly, reserving the use of anonymous sources for stories that are vital to the public interest.