Supporting a shield

The midterm elections have placed backers of a federal reporter’s privilege law in top positions on committees in the House and Senate.

From the Winter 2007 issue of The News Media & The Law, page 7.

By Elizabeth Soja

Recent changes in Congressional leadership might be good news for advocates of a federal shield law. However, some worry that there is not enough support for a shield bill to pass both houses of Congress, despite several recent high-profile cases involving journalists who faced either the threat of prison or actual time behind bars.

While never passed, the Free Flow of Information Act of 2006 (S. 2831, H.R. 3323) gained substantial bipartisan support in both the Senate and the House of Representatives. Had it passed, the proposed legislation most likely would have given journalists a qualified privilege for the protection of confidential sources and information.

In the Senate, the 2006 bill was introduced by Sen. Richard Lugar (R-Ind.) and co-sponsored by Sens. Arlen Specter (R-Pa.), Christopher Dodd (D-Conn.) and Charles Schumer (D-N.Y.).

Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) introduced the House bill, which offered reporters an absolute privilege to protect their confidential sources, with exceptions for national security.

Neither bill was brought to a vote or even passed out of committee before the 109th Congress came to a close at the end of 2006.

According to Paul Boyle, senior vice president of government affairs for the Newspaper Association of America, a new version of a federal shield law is already in the works in both houses of Congress and is likely to be introduced in February.

Boyle is hopeful that any new proposed shield law “will have an absolute privilege for confidential sources,” unlike the failed 2006 act.

However, Boyle said the new version will most likely “have certain exceptions, such as national security, threat to bodily harm and public safety, and situations where there has been a violation of trade secrets law.”

In these situations, according to Boyle, “there would be balancing test to determine whether the interest in compelled disclosure would outweigh the interest in the free flow of information.”

The 2006 Senate bill required requesters of confidential material to show that: (1) they exhausted all other alternate sources, (2) they had reason to believe the information is relevant, (3) the information was critical to the case, and (4) the public interest in disclosing the confidential source outweighed the public interest in newsgathering and maintaining the free flow of information.

These requirements echoed the Department of Justice’s internal guidelines, which require the government to exhaust other sources and have “reasonable grounds” to believe that the information sought is both relevant and critical. Justice Department attorneys seeking information from the news media must also “strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”

Supporters in key positions

In the Senate, Sen. Patrick Leahy (D-Vt.) is the new chairman of the Judiciary Committee and is a supporter of a shield law. In a statement prepared for the 2006 Senate hearings on the shield bill, Leahy strongly advocated protections for journalists and wrote that journalists’ efforts have “been critical in exposing to scrutiny” mistakes and corruption in government.

Specter, the ranking Judiciary Committee member and former committee chairman, is also an enthusiastic advocate of a federal shield law. He co-sponsored the 2006 bill and has praised “the value of investigative reporting to the public interests in exposing corruption, malfeasance, and misconduct.”

In the House, Rep. John Conyers (D-Mich.) is now the chair of the Judiciary Committee. He co-sponsored a proposed shield law in the late 1970s and recently said that he “expect[s] bipartisan interest and support of the idea of a federal law which undergirds the freedom of the press that is so vital to our democracy.”

In January, Conyers co-authored a letter to Attorney General Alberto Gonzales urging Gonzales to withdraw the subpoenas issued to San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams, whose stories have revealed that star athletes have told a grand jury they used steroids.

Until an attorney admitted in a plea agreement to providing the documents, the reporters faced prison time for refusing to reveal who gave them the grand jury testimony from the investigation into the Bay Area Laboratory Co-Operative, also known as BALCO.

Additionally, ranking member of the House Judiciary Committee Lamar Smith (R-Texas) was one of the co-sponsors of the 2005 version of the Free Flow of Information Act.

Pence and Boucher, who co-sponsored the 2006 shield law bill in the House, remain on the committee as well.

Pence, a self-proclaimed conservative, has called the jailing of former New York Times reporter Judith Miller a “scandal” and said that her “only crime was standing up for the public’s right to know.”

Boyle said that the recent shift in power “will have positive impact because the chairman and the ranking member of the committee want to do something about a shield law. I’m hopeful that legislation could get hearings and have the potential to move out of committee,” he said.

‘Too many political undertones’

Since the idea of a federal shield law has been floating around Congress for more than 35 years, many wonder why one has never passed.

According to Boyle, “part of the reason the old versions never went anywhere was that the media wasn’t unified.” Boyle said there was much disagreement within media groups about what protections a shield law should afford and that the infighting stalled all versions of the legislation.

“Now,” Boyle said, “we have a unified media collation that supports a shield law because things have gotten so bad.”

However, not everyone sees that same unified front. Debbie Berman, a media attorney and partner at Jenner & Block in Chicago who has represented CBS and Infinity radio, said even if new legislation is introduced, “it’s not going to be perfect, which will make some people unsupportive. There are factions of people who are in favor of a shield law in theory but will oppose it if it doesn’t include their constituency, such as bloggers and freelance journalists,” she said.

Kurt Wimmer, senior vice president and general counsel at Gannett Co., said that although everyone with a blog cannot be covered by a federal shield law, there might be opportunities to draft a law that is inclusive.

According to Wimmer, who lobbied in support of the shield law on behalf of the Newspaper Association of America before joining Gannett, “the problem, of course, is that it’s a question of definition.”

If the new legislation defines a “journalist” based on whether the person was functioning as a journalist at the time he was gathering information, “I think you can bring in some bloggers,” Wimmer said.

However, if the bill defines as journalist as someone who is employed by the mainstream news media, this would exclude the majority of bloggers from protection under the bill.

Berman also said that because any federal shield law will most likely contain an exception for national security, some journalists and lawyers “think we’re better off now with no law.” She said that national security is “one of those exceptions that could swallow the privilege,” but that “the devil is in the details; depending on how it’s worded and how it’s interpreted, it could end up, in reality, being no shield law at all.”

However, Wimmer said he believes that a national security exception would not ruin a privilege.

“If you look at the number of subpoenas that the media deal with, there are very few that involve matters of national security,” Wimmer said. “Frankly, I think we’ve acknowledged that in a post-September 11 environment, there has to be a national security exception.”

Boyle also believes that the 2005 and 2006 versions of the proposed shield law were stalled by politics.

“From a political perspective,” Boyle said, “we were bogged down by the Judith Miller/Valerie Plame situation. That issue minimized the other benefits of the proposed shield law because it became more political than good policy. There were too many political undertones about why the information was leaked.”

Miller was sent to jail for contempt of court after she refused to tell a federal grand jury who told her that Plame, wife of Bush administration critic Joseph Wilson, was an undercover CIA agent.

However, Boyle believes that the work of the Chronicle reporters — whose reporting on steroids in sports garnered praise from athletes and parents to President Bush himself — might help minimize the political undertones.

Boyle said the stories changed baseball’s policy regarding steroids and caught the attention of Congress.

“Many lawmakers vocalized their support for these reporters,” he said. “There was a lot of pressure from Capitol Hill surrounding this case, so I’m hoping that may have had an impact. The news around the reporters’ plight may have had an impact on their source’s decision to come forward.”

Wimmer agreed and said that the BALCO story “does have potential for really highlighting the issue in a straightforward way, when you look at the fact that their reporting was in the public interest” and that they were “congratulated by Bush,” but still faced the threat of prison.

Wimmer said that although the reporters likely will not go to prison, their case still demonstrates the need for a federal shield law.

“They’ve been through almost two years of hell with their families,” he said. “If this had been a state case under the California shield law, none of that would have happened. They didn’t avoid jail time because the federal court offered them protection, so the danger is still there that other journalists will face this problem.”

As for the transition of power, Wimmer said that “just because we have Democrats in power doesn’t mean we can pass the shield bill. There are a number of people on both sides of the aisle who were holding the bill up last year. It’s not a Democrat versus Republican issue.”

Berman believes that the newly empowered Democrats might try to make “the pitch for a shield law stronger by trying it into war on terror and war in Iraq, along with the reductions of people’s liberties and the recent perceived attacks on the First Amendment” by the Bush administration.

Even if a shield law is approved by the Judiciary Committees, it still has to be considered by Congress as a whole.

“There has definitely been a sea change,” Berman said, “but it’s difficult to tell at this point whether that change will lead to a greater likelihood of a shield law being passed.”