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Maybe we’ll pull off a shield law this time

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From the Spring 2007 issue of The News Media & The Law, page 1. Sitting in a U.S. House of…

From the Spring 2007 issue of The News Media & The Law, page 1.

Sitting in a U.S. House of Representatives press conference the other day, I allowed myself the luxury of optimism. With two Republicans and two Democrats announcing the introduction of a federal shield law, I couldn't help but think we might pull it off this time.

The Reporters Committee has been fighting for the right to protect confidential sources nearly every day since the organization's creation 37 years ago. With disappointing court cases, beginning with Branzburg v. Hayes in 1972, and more than 100 shield law bills failing to make it out of Congress over 30-some years, it's hard to imagine the circumstances under which we could get a federal shield law passed now.

But I think we're there. Not that there haven't been a few recent bumps in the road.

When campaigning for a shield law, we frequently point out the "ideal" cases that support passage: Whistleblowers must feel safe in coming forward with important information with great public interest. The public must be able to get information from "independent" journalists who can be impartial in reporting the news of the day.

But reporters aren't perfect people, so the cases we get are seldom ideal examples of why we need to protect sources and information.

Take the Scooter Libby prosecution, for instance. It wasn't easy explaining to the public why a half-dozen subpoenaed reporters in that case handled the subpoenas differently. Some testified without waivers, some got waivers and then testified, and one went to jail and then recognized a waiver. The public seemed outraged that any of the reporters had allowed themselves to be "spun" by White House political operatives. And, anyway, was the identification of Valerie Plame as a covert operative a valuable piece of journalism? The Libby case was a three-year nightmare for American journalism.

It seemed we had a much cleaner case with the Bay Area Laboratory Co-
Operative stories done by the San Francisco Chronicle. Two reporters who had written stories of great value to the public regarding illegal substances in major sports should have been the ideal "poster children" for the reporter's privilege.

They courageously stood up to the court and refused to testify about their sources, even when cited with contempt and threatened with jail time. The stories by Lance Williams and Mark Fainaru-Wada were outstanding pieces of journalism that led to a congressional investigation and changes in Major League Baseball's policies.