Friday, February 6, 2009


The U.S. Senate will decide in the next few days whether to pass a law safeguarding the right of journalists to protect their sources.

Arlen Specter, the ranking Republican member of the Senate Judiciary Committee, argues passionately for the enactment of this legislation: Far more than the protection of journalists is involved here, the senator says. It’s “protection for the public and for our form of government.“

The Senate majority leader, Democrat Harry Reid, wants a floor vote on the legislation before the August recess. The bill establishes a federal privilege for reporters to “protect and encourage the free flow of information between journalists and confidential sources.” The new law would balance the public’s right to know with the needs of law enforcement and the duty of judges to ensure that trials are fair.

Why should people care about this proposed law? Because it goes to the very core of our democratic system of checks and balances. One of the most important checks is the press itself. With disturbing frequency prosecutors have, in recent years, called reporters before grand juries, trying to pry out of them the names of the people who gave them information. Several reporters have been jailed for refusing to identify sources that had been promised protection in return for information.

The issue of protecting journalists has a particular resonance in New York City. For it was here that, in an epic case, the cause of freedom of the press won a great victory.

Back in the hot summer of 1735, a half-literate printer named John Peter Zenger was slapped into jail here for having the temerity to criticize the English governor of New York in an article in his New York Journal. The Journal was the equivalent of an 18th century blog. Zenger criticized the governor and, by implication, the crown, for various reasons. He was accused of sedition and libel, but a brilliant lawyer named Andrew Hamilton argued that truth was an absolute defense, and that Zenger had written truth.

Hamilton declared that that this was not the cause of just a poor printer or of New York alone, adding: “It is the best cause. It is the cause of liberty.” The jury brought back a quick verdict, not guilty. Zenger was freed and a crowd of spectators cheered.

Nearly 300 years later, an old battle seems to be renewed. Again, voices of authority have put pressure on journalists. Again, in what appears to be an effort to suppress the truth or at least intimidate truth seekers, some government authorities have put the muscle on reporters. The Senate should reaffirm a basic American value before it adjourns by passing the shield law.

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