NEW YORK — A delegation from the Committee to Protect Journalists recently visited a reporter in jail. The reporter wasn't incarcerated in Burma, China, Cuba, or Eritrea - all countries that lead global tallies of imprisoned journalists. Rather, the delegation met with Judith Miller, a New York Times reporter jailed in the US for concealing the identity of a source from a grand jury investigating the leak of a CIA operative's identity.
Ms. Miller's incarceration, which followed her unsuccessful appeal to the US Supreme Court, occurred while a proposed shield law - designed to protect journalists from Miller's fate - is pending in Congress. To safeguard press freedom in the US, and ensure that cases like Miller's don't recur, it is vital that this legislation be passed.
In the US, despite shield laws in 31 states that grant journalists broad, but not absolute, rights to protect source confidentiality, a growing number of reporters have been fined or incarcerated in the past several years after being found in contempt of court for refusing to reveal a source. Rhode Island television reporter Jim Taricani was sentenced to six months of home confinement last December, while Texan freelance writer Vanessa Leggett was jailed for five months in 2001 after refusing to turn over research materials to a federal grand jury investigating a murder. Numerous other reporters have been threatened with jail time. Such cases were a major factor in Freedom House's decision to downgrade the US from 15th to 24th place in its most recent annual global survey of press freedom.
Generated by concern over these recent cases and the belief that the US should set a positive example on media freedom, efforts are under way in Congress to enact a national shield law. Legislation is based on Department of Justice guidelines and would afford journalists greater protections than they currently enjoy in the federal court system. A House bill introduced in February, the "Free Flow of Information Act," would guarantee journalists the right to protect source confidentiality; a similar bipartisan bill was proposed by Senators Richard Lugar (R) of Indiana and Christopher Dodd (D) of Connecticut. Reporters would only be compelled to appear before a federal court as a last resort; notes and research materials would be subject to official scrutiny only if they were deemed essential evidence in a criminal case.
Critics of shield laws contend that journalists shouldn't be allowed to protect sources in every instance; for example, if their testimony could prevent an imminent terrorist attack or could lead to a conviction of murder. But in the current environment, where overzealous local officials and judicial authorities threaten, and in the worst cases, imprison journalists, the passage of a national shield law is necessary. In Belgium, outcry over the detention of journalist Hans Martin Tillack in 2004 spurred passage of a law extending journalists' ability to protect sources. Police had raided Mr. Tillack's home, seizing notes and equipment, following a judge's order issued at the behest of the European antifraud office, apparently in retaliation for Tillack's probes into corruption in EU institutions.
It seems logical that Belgian authorities ultimately predicted the long-term consequence of officially sanctioned harassment of reporters who produce critical or investigative news stories: a dangerous, chilling effect on press freedom, as journalists become less willing to perform a "watchdog" role while their sources become less willing to share information without the protection of confidentiality. The slope is a slippery one, potentially leaving democratic societies with a weakened ability to publicly scrutinize their governments.
Since the case against Miller began, disturbing developments have arisen in other well-established democracies, suggesting that "if the US can do it, so can we." A Portuguese reporter was given an 11-month suspended jail term last December when he was called on to reveal a source at a trial, while police have raided media premises in Australia and France to uncover journalistic sources. Just several weeks ago, two journalists were charged with contempt by an Australian court. Fledgling democratic governments may also feel tempted to emulate the US example; in early August, an editor in Ethiopia was sentenced to one month in jail for refusing to reveal a source.
The shield laws under congressional consideration are balanced enough to provide broad protections for journalists while allowing that there may be a small number of specific cases in which they may be compelled to provide essential information. Exceptions are made for information that is deemed indispensable to national security, and strict standards relating to classified information would be maintained.
In order to protect press freedom at home and to set a positive example for other countries around the world, it is vital that federal shield legislation be passed before more American journalists are sent to jail. Our democracy depends on it.
• Karin Deutsch Karlekar is managing editor of 'Freedom of the Press,' an annual global survey of media independence produced by Freedom House, a monitor of political rights and civil liberties worldwide.