In the past year more than two dozen reporters have been subpoenaed or questioned about their confidential sources in cases before federal courts. Meanwhile, efforts continue to pass a federal media shield law, also known as the Free Flow of Information Act.

The Senate version of the proposal, S. 2035, has been scheduled as a priority for the Senate before it recesses in early to mid-August. The House of Representatives passed its version (H.R. 2102) last October, and the Senate Judiciary Committee approved the Senate’s version about the same time. But final action, like for most legislation in this presidential election year, has been lagging.

According to the Society of Professional Journalists, subpoenas for reporters have been issued over the last 12 months in the BALCO grand jury investigation, the Wen Ho Le and the Steven Hatfill privacy lawsuits and the Valerie Plame leak investigation. One reporter has served four months in home confinement for contempt of court after refusing to reveal a source, the SPJ said, another reporter sits in an Alexandria, Va., jail and four others may face prison sentences of up to 18 months by the end of the year.

Arkansas has a shield law, which protects journalists from being compelled to testify about the sources of confidential information that they receive in the course of their work. Thirty other states and the District of Columbia have similar laws, but those laws do not help in federal case, and there is no uniform set of standards for federal court judges to follow when such a case arises.

The problem with compelling reporters to reveal the identify of a confidential source is that it will restrict the flow of information to the public. Generally, a good reporter promises to protect the identity of a source only with great care and reluctance. A reporter must understand that we don’t make such a promise without considering the consequences. One of the consequences, unfortunately, can include a reporter’s going to jail, such as happened to Judith Miller of the New York Times in the Plame story. But more importantly, we must consider whether the information we can obtain from a confidential source is important enough to employ the tactic, whether the source just has “a grudge to bear” and whether the story might wind up being one-sided.

A story always has more credibility if all sources are clearly identified. But sometimes critical information can be obtained in no other way and, in fact, identifying the source would only compromise the source and cut off the information. A good rule of thumb for reporters is to always confirm all information obtained from a confidential source with two other independent sources.

The most famous example is, of course, the Watergate case, in which information from confidential sources from inside the government ultimately brought down the corrupt administration of President Richard M. Nixon. Ordinarily, we find that no matter how corrupt a government entity might be, there are honest and ethical people concerned about doing the right thing.

The proposed shield law is modeled on voluntary Department of Justice guidelines that have been in place for more than 30 years. They set out the standards under which the Department of Justice may subpoena reporters regarding their confidential sources, but they don’t apply to special prosecutors or in civil cases.

SPJ points out that the legislation is not “absolute protection” for reporters to withhold information on sources. Here is the organization’s summary of what it would do:

• Allow testimony to be compelled from a journalist in civil and criminal cases only when there is clear and convincing evidence that (1) the party seeking the evidence has exhausted non-media sources and (2) the testimony sought is essential to the investigation or case.

• Expand upon the Justice Department guidelines to include protection of the identities of confidential sources and prohibit disclosure of such sources, including information from third parties. However, disclosure of the source’s identity is permitted if the disclosure is necessary to prevent “imminent and actual” harm to national security; and

• Define the scope of persons covered by these standards.

We urge Arkansas’ senators, Mark Pryor and Blanche Lincoln, to support the Free Flow of Information Act and help make it the law of the land.

—Roy Ockert Jr.