NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · June 14, 2007
House panel hears debate on reporter’s shield bill
June 14, 2007 · A proposed federal reporter’s shield law drew strong support and sharp criticism from witnesses and legislators today during a House Judiciary Committee meeting about the bill introduced last month.
The five witnesses, who included journalists and attorneys, testified about the chilling effect reporters feel when subpoenas are issued and discussed concerns that the bill’s definition of journalism is too broad.
Lee Levine, a Washington, D.C., media attorney, said the deluge of subpoenas has reached an epidemic proportion and has caused some media outlets not to print publicly important articles.
Levine cited two stories The Cleveland Plain Dealer withheld “because they were predicated on documents provided to the newspaper by confidential sources.” He said the paper’s editor said if the stories were printed, there would undoubtedly be a leak investigation in which the paper would have to choose to reveal its sources or go to jail, and that neither was an option.
The bill, called the Free Flow of Information Act, was introduced by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) and would protect reporters from having to reveal confidential sources in criminal and civil court proceedings.
The proposed law contains exceptions for information that would cause imminent and actual harm to the national security, that would cause imminent bodily harm or death, that would reveal the source of trade secrets of significant value, or that would reveal who disclosed confidential health or financial information in violation of the law. In those cases, a judge would weigh a prosecutor or civil litigant’s interest in the reporter’s information against the public’s interest in newsgathering.
During today’s hearing, Levine and Pence cited a Freedom of Information Act request submitted by The Reporters Committee for Freedom of the Press inquiring about the number of reporter subpoenas approved by the U.S. attorney general. The Justice Department’s criminal division responded that the attorney general had approved about 65 media subpoenas since 2001.
William Safire, a Pulitzer Prize-winning columnist for The New York Times and a former speechwriter for President Richard Nixon, and Randall Eliason, a former assistant U.S. attorney, disagreed as to whether journalists have felt a chilling effect in recent years.
Safire said journalists have been chilled by the recent rash of subpoenas, jail time and heavy fines reporters have faced for refusing to disclose the identities of confidential sources.
“We don’t want to go to jail,” he said. “We don’t want to be bankrupt.”
Safire also said the same concerns have quieted potential confidential sources.
“I think it’s demonstrable that the leaks, the whistleblowers, are drying up,” he said.
Eliason said history shows that the lack of a federal shield law has not led to reporters being chilled, saying the stories continue to be written. He also said many who leak information are breaking the law.
“If those kinds of sources are chilled, then that’s a good thing, that’s in the public interest,” Eliason said.
Eliason cited the case of another committee witness, Jim Taricani, an investigative reporter with Providence, R.I., television station WJAR who was convicted of criminal contempt of court after refusing to identify a source who leaked an FBI videotape showing a city official taking a bribe.
Taricani described the four months he spent in home confinement, during which he wore an ankle bracelet and was subject to weekly drug tests.
“I was treated as common criminal for reporting a story of importance to the public,” Taricani told the panel.
He said a reporter’s shield law is needed for journalists to “do our jobs the way the Founding Fathers wanted us to do our jobs.”
Some Judiciary Committee members thought the definition of journalism contained in the bill is too broad, echoing the concerns of Assistant Attorney General Rachel Brand, who testified about the Justice Department’s problems with the proposed law.
The bill defines journalism as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
Brand said that definition could include anyone who wanted to hide behind the bill’s protections. Brand said it is difficult to write a definition that will pass a First Amendment challenge but not be too broad.
Eliason agreed that it is difficult to define a journalist any other way. Safire concurred with that statement, noting it was the first time he agreed with Eliason that day.
“I think the attempt to define it is a mistake,” Safire told the panel.
The House bill is identical to a Senate bill introduced by Sens. Chris Dodd (D-Conn.) and Richard Lugar (R-Ind.).
(H.R. 2102, Free Flow of Information Act of 2007) — SH