Shield law down, but not out

From the Summer 2008 issue of The News Media & The Law, page 10.

One more thing to blame on the price of gas: A last-minute, late-July push for a Senate vote on the proposed federal shield law sputtered amid a partisan stand-off over oil drilling.

In a layering of procedural maneuvers, the Senate vote failed to end debate on the proposed reporter’s shield law and move to a vote on the bill. Republican opponents said they did not want the shield law to distract from the energy debate in the closing hours before the Senate’s August recess.

And so watchers of Senate Bill 2035 look toward the window of lawmaking time once Congress returns in September.

“We’re disappointed, but we’re not surprised by the outcome,” said Paul Boyle, vice president for government affairs at the Newspaper Association of America.

He noted that the law wasn’t defeated on the merits but rather stalled on a procedural vote — and the year isn’t over yet: “I think there’s a good chance that it will pass, but there’s a lot of work that needs to be done to make sure it stays” on the Senate agenda in the fall.

The Free Flow of Information Act would offer journalists qualified protection against having to testify in court and reveal confidential sources. The House overwhelmingly passed its own version of the shield law last fall.

If it does succeed this year, the Senate bill would likely first have to survive a spray of amendments, and it would still have to be resolved with the House version.

As it stands now, Senate Bill 2035 bars the government from compelling a journalist to testify or out confidential sources unless a leak of classified information has harmed national security, or unless the information is crucial to a legal case and all other means of getting it have been exhausted.

Other exceptions to the reporter’s shield in the bill include preventing a murder or kidnapping, or an act of terrorism.

A journalist is defined by what she does rather than whether she gets paid.

“At this point in our view the bill is solid,” Boyle said, “but it can’t get weaker.”

Despite a chorus of concerns from the Bush Administration and the Defense Department over a shield law’s impact on national security, Boyle and others say the bill has broad bipartisan support. Sens. John McCain (R-Ariz.) and Barack Obama (D-Ill.), the presumptive presidential nominees of both parties, favor a reporter’s shield law.

And four Republican Senators joined the bulk of Democrats voting 51 to 43 to proceed with the bill on July 30. Sixty votes were needed for it to pass.

Nor has President Bush said he would veto the bill, Boyle said. But a week before the Senate vote, Attorney General Michael Mukasey told members of the House Judiciary Committee he could not support a law that “will essentially do more to protect leakers than it does to protect journalists.”

Mukasey questioned whether the bill would require the government to disclose classified information in order to get a reporter to testify. He also faulted provisions that would have the government prove a potential national security threat outweighs the value of unfettered newsgathering.

Indeed, national security was a topic of concern for the few Republicans who spoke out against the bill on the Senate floor in late July. Sen. John Cornyn of Texas said it offers inadequate protection to bloggers, and wondered whether “a jihadist or someone, let’s say, from al-Jazeera,” the Qatar-based news network, could pose as a reporter and avoid having to testify before a grand jury.

Sen. Arlen Specter, a Republican sponsor of the bill, countered that reporters are being intimidated as more and more prosecutors rely on them as investigative tools. He worried that if the bill did not come up for a vote quickly, it would not pass this year.

“There is no doubt about the extremely high value in our society of a free press and an investigative press for the disclosure of corruption, malfeasance and wrongdoing at all levels in public life and in private life,” Specter said.

Boyle, too, said the bill is becoming urgent as prosecutors, even at the state and local levels — perhaps taking the cue from federal authorities and the high-profile contempt cases against former USA Today reporter Toni Locy and former New York Times reporter Judy Miller — are serving journalists with more and more subpoenas.

Reporters may be to the point of weighing whether it’s worth it to pursue a controversial story at all, he said, for fear of facing jail time if they are subpoenaed.

“Does that have a chilling effect? I think it does,” Boyle said. “I think people are going to say, ‘Is this worth pursuing?’ That’s not what we want in our society.”