What does the federal government have that's missing from 49 states?

Fear.

Fear of protecting journalists from being forced to reveal their sources, to be specific. Fear of public access to matters of public interest, to be brutally broad.

The aptly named Free Flow of Information Act, passed overwhelmingly by the House and expected to be voted on by the Senate this week, addresses a problem that has been dealt with rather handily by the states but persists at the federal level.

The bill would provide a "shield" to journalists who are now subject to pressure from prosecutors and judges to disclose the identities of anonymous sources.

More than 40 journalists in recent years have been subpoenaed, questioned, held in contempt of court and even jailed over their pledges of confidentiality to sources, notes Rep. Mike Pence, R-Ind., a champion of H.R. 2102. The implications are far from comforting when one considers, not the plight of the reporter, but the plain fact that many of the most important exposes of high-level wrongdoing — Watergate, Walter Reed Army Medical Center, Enron — depended on information from persons who dared not or simply would not go public. Stifling that process would not just inconvenience an industry; it would weaken democracy, for which facts are oxygen.

At the same time, it is not as though the measure gives carte blanche to irresponsible or nefarious snoops whose revelations or secrecy might endanger national security or otherwise do harm. The bill provides for judicial review on a case-by-case basis as to when and whether the shield can come down.

While the administration and some senators insist that the qualified shield law as proposed is not qualified enough, it is noteworthy that the two chief architects, Pence and Sen. Richard Lugar, R-Ind., are both conservatives with impeccable national security credentials and keen awareness that this is wartime. Conservatives, Pence and Lugar point out, also believe in limited government and the essential role of a free press.

So do 41 state attorneys general. They've petitioned Congress and President George W. Bush to enact the Free Flow of Information Act, which Bush has threatened to veto. These leaders in law enforcement could assure the president, if media organizations could not, that experience does not substantiate fear of free exercise of the First Amendment, unless that fear is a selfish one about letting go of power.

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