REPORTERS DIG for news. Important stories rarely arrive by press release. Some of the biggest consist of information from people whose lives or careers would be in jeopardy if their identities were made public. So Judith Miller of The New York Times was not exaggerating greatly when she told a federal judge on Wednesday: ''If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press."
Judge Thomas Hogan was unmoved, however, and ordered Miller to jail for refusing to reveal a source of information about Valerie Plame, whose role as a CIA operative was made public by columnist Robert Novak two years ago. In doing so, Hogan undercut an essential tool that the best reporters use rarely, but to powerful effect.
Because of Hogan's action, the misguided and somewhat mysterious zeal of special prosecutor Patrick Fitzgerald, and the failure of the Supreme Court to intervene, it is clear now that Congress should pass a federal shield law allowing reporters, with few exceptions, to keep secret the names of sources to whom they have promised anonymity. This is needed to protect the press role that the nation's founders, especially Thomas Jefferson and James Madison, believed crucial to a democracy.
In years past, this page opposed shield laws, arguing in 1985 that the First Amendment offered better protection than any statute, which might be changed by legislatures from year to year. Also, any shield law must define who and what is protected, raising a danger that anything not specifically covered would be vulnerable. Also, reporters do not like to seek a benefit from government, preferring to maintain independence. These reservations are outweighed, however, by the threat that is now apparent.
Many reporters do not seek an absolute protection. In rare instances when an informant has committed a violent crime or given up a claim to confidentiality, society's interest in knowing the source of information may prevail. But in the great majority of cases, reporters must be able to promise anonymity credibly or they will not get information.
Supreme Court Justice Potter Stewart proposed sensible guidelines in 1972. Prosecutors should be able to pursue sources, he suggested, only if they could demonstrate that the information was relevant, not obtainable any other way, and involved a case of compelling and overriding public interest. Unfortunately, Stewart was dissenting in Branzburg v. Hayes; the majority opinion found no right of confidentiality, at least in criminal cases.
Judith Miller carried an important journalistic tool with her to jail. Congress should protect Miller, and the national interest.