The tension over balancing the government's duty to protect national security and the media's role as public watchdog is long-standing. Take away protections for reporters' confidential sources and "the people who know what's happening become fearful, and they will not come forward with information the public may find very valuable," said Lucy Dalglish, dean of the University of Maryland's journalism school. "It's a classic chilling effect."
But neither, said George Washington University law professor Orin Kerr, does the public want a world of free disclosure by government workers with no opportunity for the government to investigate. "It requires a very delicate balance. We wouldn't want either extreme," Kerr said.
One possibility for compromise is a long-discussed federal media shield law to go along with similar laws in most states. Even as President Barack Obama defended his administration's aggressive pursuit of leakers of government secrets, he also said Congress should consider a law that generally would protect journalists from government subpoenas and allow judges, in rare instances, to decide whether national security concerns trump press freedoms.
Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., said they would introduce a new version of a media shield bill that Congress last considered four years ago.
The congressional proposals — and there have been many over the years — are partly a response to a 1972 Supreme Court ruling that nothing in the First Amendment protects reporters from being called to testify before grand juries. Justice Byron White's majority opinion scoffed at the idea that it would dry up confidential sources. He said Congress was free to give journalists, or "newsmen" in that era's parlance, additional protection under federal law. That case arose in the context of the government's pursuit of Black Panthers and also drug users in Kentucky.