Obama administration publicly endorses shield bill

Cristina Abello | Reporter's Privilege | Feature | November 5, 2009

The Obama administration today released a letter that supports revised legislation pending in the Senate Judiciary Committee that broadly defines the definition of a journalist in a proposed federal shield law.

The letter, signed by Attorney General Eric Holder and Director of National Intelligence Dennis C. Blair, represents the first presidential endorsement of federal shield legislation. Previously, the Obama administration had surprised shield law advocates by suggesting the federal legislation contain a new exception that would have eliminated judicial review if the executive branch asserted a government leak would cause significant harm to national security.

Under the revised version of the law, a journalist will not be required to be a salaried employee of a media company, but rather a person gathering news for the purpose of disseminating the information to the public, which could include unpaid online journalists. A person who is reasonably believed to be claiming the privilege to cover a crime of terrorism or aiding a terrorist organization will be excluded from the definition.

“Over time, we expect that the courts will be able to distinguish persons entitled to the protections afforded by this statute from those who are not,” the Holder-Blair letter stated.

Other new features of the legislation modify the public interest balancing tests that a judge is expected to conduct before compelling disclosure of confidential material. In criminal cases, journalists would be required to show “clear and convincing evidence” that revealing source materials would be against the public interest, while in non-criminal cases, the party seeking the information has the burden of showing that disclosure is in the public interest.

A national security exception exists if the information “would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security.” Unlike the original Obama proposal, the new version of the law allows courts to decide whether a government leak rises to the level of an act of terrorism or a significant harm to national security.

“We appreciate the critical role that the media plays in a free and democratic society. This legislation provides robust judicial protection for journalists' confidential sources, while also enabling the Government to take measures necessary to protect national security and enforce our criminal laws,” the letter said.

The legislation has been in front of the committee for several weeks and was scheduled to be considered at today's Senate Judiciary Committee business meeting, but legislators on both sides declined to vote on the new language today, saying they needed more time to review it.