Theodore B. Olson wrote in WaPo
Journalists reporting on high-profile legal or political controversies cannot function effectively without offering some measure of confidentiality to their sources. Their ability to do so yields substantial benefits to the public in the form of stories that might otherwise never be written about corruption, misfeasance and abuse of power. A person with information about wrongdoing is often vulnerable to retaliation if exposed as an informant.This is a very bad time to bring this up, after the NYT just published another secret tool being used in the War against TerrorismReporters do not expect to be above the lawBaloney. They certainly do think that because of the 1st amendment they are above the law. The 1st ammendment says we can't shut the NYT down; it doe not protect the NYT's reporters from revealing who provided them secret information.But they should be accorded some protection so that they can perform their public service in ensuring the free flow of information and exposing fraud, dishonesty and improper conduct without being exposed to an unanticipated jail sentence.... Congress is moving forward to regularize the rules for reporters, their sources, publishers, broadcasters and judges. The Senate Judiciary Committee will soon take up a bill entitled the Free Flow of Information Act of 2006, sponsored by a bipartisan group of legislators and modeled in large part on the Justice Department guidelines. It does not provide an absolute privilege for confidential sources, but it does require, among other things, that a party seeking information from a journalist be able to demonstrate that the need for that information is real and that it is not available from other sources. Matters involving classified information and national security are treated differently.Hopefully it provides long terms of imprisonment, and perhaps even the death penalty, for reporters, editors, and publishers who print secret information in a time of war.The current controversy over publications relative to the administration's efforts to deter terrorists does not, therefore, provide any basis for delaying or rejecting this needed legislation.It should be delayed until we know for certain how it treats printing secret information.