Protecting sources

By Jason Crowell

and Tim Jones

There's good reason our Founding Fathers established freedom of the press as a fundamental principle of liberty in our Bill of Rights.

They endured, in the words penned by Thomas Jefferson, a "long train of abuses and usurpations" under a despot king. They knew an aggressive, independent press would be essential to maintaining an informed citizenry and to exposing injustices otherwise hidden behind curtains of power and position.

Despite the apparent importance of maintaining a free press, the institution is under attack. In too many cases, lawyers are demanding and courts are ordering reporters, under the threat of criminal charges and incarceration, to divulge confidential information and sources.

Some argue the sought-after information is necessary to bring justice to bear. In some cases, this might be true. However, we cannot disregard what we begin to lose when we begin to compromise news reporters' ability to obtain information.

Consider the importance of promising anonymity. How many people in the know would approach a journalist to reveal abuses of power if they couldn't count on their identities' being protected? Certainly very few.

Yet current law is based on court precedent, not state statute, which leaves journalists uncertain of what legal protections they have and don't have.

Many would agree with Matthew Cooper of Time magazine. Testifying before the U.S. Senate Judiciary committee Cooper said, "The rules of the road as I try to do my job are chaotic at best. ... Right now, if I pick up the phone and call a senator or a civil servant and they say, 'Don't quote me on this but ... ' or 'Don't identify me but ... ' I can't really know what I'm getting myself into assuming that what follows is important and controversial enough to rise to the level of litigation. ... As a working journalist, I'd like to know better what promises I can legally make and which ones I can't."

Cooper and others would agree that in the end a law to protect journalists' ability to promise anonymity is less about journalists and more about the average citizen.

The public has a right to know, and sometimes only a privileged few can bring hidden information to light. Think for a moment. What if journalists had been unable to promise anonymity to those who shared information on high-profile scandals like Watergate and Enron? More importantly, where would we be if those abuses had not been brought to our attention?

So, in the name of maintaining the free flow of information necessary to an informed citizenry, an engaged public and a vital and active democracy, we have filed bills that provide journalist a qualified privilege.

Similar to shield laws found in 31 states and the District of Columbia, our measure strikes the proper balance between reporter rights under the First Amendment and the public's need for information. It does not provide absolute protection, but it does establish standards that must be met before a reporter is required to divulge confidential information.

Specifically, a person seeking a reporter's unpublished information or source material must obtain a court order requiring the reporter to divulge information sought. A judge must consider a number of factors when deciding whether information must be released. The court must consider the claims of the reporter and the party seeking the information, the relevance of the requested information and the impact of ordering the information to be divulged.

In addition to these factors, a court order must find the following:

First, the information sought after must not involve matters required to be kept secret under law.

Second, all other avenues for finding the information must be exhausted.

Finally, the information must be vital to the public interest or to a person's ability to prove innocence or guilt.

These protections are commonsense. They're consistent with the majority of statutes throughout the United States and they're consistent with current case law in Missouri. Placing these changes in statute removes the uncertainty of relying on court precedents and establishes, in the words of Time's Matthew Cooper, "the rules of the road" for Missouri journalists.

Again, the Free Flow of Information bill would not only grant Missouri journalists a qualified privilege, but would also protect the interests of everyday Missourians.

That, we believe, was the intent of our Founding Fathers and one we hope this legislation can preserve.

Jason Crowell of Cape Girardeau represents the 27th District in the Missouri Senate. Tim Jones of Eureka represents the 89th District in the Missouri House of Representatives.