Sept. 21 Daily News editorial

Legislation that would give reporters a qualified privilege to withhold the names of confidential sources has stalled in the Senate Judiciary Committee, due to concerns about its impact on national security. Fortunately, the roadblock looks to be temporary. Attorney General Eric Holder is working on some changes with Senate supporters of the measure. The Senate bill’s chief sponsor, New York Democrat Charles Schumer, on Friday expressed confidence that they’ll soon have a compromise the administration will support.

That’s good news, and not just for news-gathering organizations. Everyone benefits when honest citizens can expose government wrongdoing without fear of retaliation. Giving reporters some measure of statutory protection against being forced to reveal confidential sources is important to the promotion of open government. Without the expectation of confidentiality, a great many would-be whistle blowers would hesitate to reveal government incompetence or wrongdoing.

Washington state lawmakers have recognized the need for a limited reporter privilege. The Legislature enacted a so-called “shield law” in 2007 that gives reporters strong protection in state courts, much like the exemption from testifying in court about privileged communications the law grants to spouses or attorney and client. But Washington’s law has no force in federal courts.

The need for a federal shield law has become somewhat urgent in recent years. Up until six or so years ago, federal courts had been sympathetic with a reporter’s need to protect the identities of confidential sources, drawing guidance from a separate opinion by Supreme Court Justice Lewis Powell in a 1972 case. Powell’s words were generally interpreted as a partial recognition of reporter privilege. That changed in 2003, when a federal judge ruled that there was no reporter privilege, qualified or otherwise. Federal prosecutors have questioned more than 40 reporters about their confidential sources since that ruling. In 2005, New York Times reporter Judith Miller was locked up for 85 days for refusing to identity a confidential source.

The Senate bill, which is similar to legislation approved in the House last spring, provides for several exceptions to the privilege it would grant reporters. According to a report by Associated Press writer Larry Margasak, reporters would have to disclose confidential sources if the court determined that the information came from criminal conduct or from observing criminal conduct. The reporter would have to disclose information if it is material to preventing, mitigating or identifying an act of terrorism. And, finally, the reporter would have to disclose information that is reasonably necessary to stop, prevent or mitigate a specific case of death, kidnapping or substantial bodily harm.

There may well be additional exceptions in the hoped-for compromise being negotiated with the Justice Department. If so, we trust they’ll be as necessary and sensible as those already in the Senate bill. But whatever emerges from this process will be far better than the absence of reporter privilege, which is what we have today.