When the U.S. Supreme Court didn't stop a federal prosecutor's bid to jail two reporters who refused to testify on confidential sources this week, many free-press advocates were horrified. But not Theodore Glasser, head of the graduate program in journalism at Stanford University.
He knows judges like to clarify things, and he thinks a bit of legal murkiness may actually be good for reporters. "I'm not sure I want the state to be defining responsible and irresponsible journalism," Mr. Glasser says. "That does more damage to the free press than the current ambiguity."
A decade or two ago, Glasser would have had plenty of company in the media, which were divided over guaranteeing a reporter's right to protect anonymous sources. The idea of appealing for help to the government, hardly a traditional ally of journalism, struck many as wrongheaded.
But now even skeptical journalists are embracing the idea of "shield" laws, which would protect reporters from prosecutors intent on unmasking anonymous sources.
Tony Pederson, former executive editor of the Houston Chronicle, is a convert. "I was one of the holdouts, but now I'm absolutely convinced that without a statutory shield, independent journalism runs a real danger of being lost," says Mr. Pederson, now a journalism professor at Southern Methodist University.
Case in point: a federal prosecutor's attempt to force Judith Miller of The New York Times and Matthew Cooper of Time magazine to testify about the leak of a CIA agent's identity. Ms. Miller didn't write about the agent, and Mr. Cooper only did after syndicated columnist Robert Novak revealed her name - Valerie Plame.
The Supreme Court on Monday declined to interfere with a lower court ruling, meaning the two reporters could be sent behind bars soon.
Meanwhile, on Tuesday a federal appeals court hit the press again when it declined to protect four reporters from contempt citations for refusing to testify about their sources in the case of scientist Wen Ho Lee, once an accused spy.
"Courts used to look more favorably on journalists than they do now," says David Carlson, president-elect of the Society of Professional Journalists. "[But now] basically every decision has gone against us."
What to do? Mr. Carlson and others support a federal response. Shield law bills are currently working their way through Congress; as of 2002, 31 states and the District of Columbia had the laws in place, although their protections vary.
The legal system has long granted get-out-of-jail-free cards to people in specific professions who refuse to provide information to prosecutors. With some exceptions, lawyers, physicians and clergymembers can keep mum about things they hear from clients, patients and parishioners.
But it's pretty easy to define a lawyer. Reporters are another matter. Do only paid journalists count? What about bloggers, the Internet denizens who post their thoughts online?
"Once you start defining things, it does raise problems," says Abraham Dash, a law professor at the University of Maryland. "You've got to make exceptions when (the law) will not apply."
Pederson says shield laws present another potential problem. "As has happened in a lot of places with open- government legislation, once it's passed, someone will be shooting holes in it every time the legislature is in session."
But Stanford's Glasser thinks there are bigger reasons to steer clear of all- encompassing shield laws.
Ultimately, he says, a defendant's right to a free trial should trump a reporter's right to an anonymous source - but only if there's no other way to get information.