Reigniting the debate

A familiar bill is the subject of new talks in Congress, as the House Judiciary Committee passes a shield bill for the first time.

From the Summer 2007 issue of The News Media & The Law, page 16.

By Sean Hill and Elizabeth Soja

For what may be the first time ever, a reporter’s shield bill the Free Flow of Information Act of 2007 has been sent to the House floor by the Judiciary Committee.

Identical bills were introduced in the House and Senate. While the Senate bill still awaits action, the House committee made changes before passing the bill on Aug. 1 and announced plans to consider more changes before it will be brought up for a vote on the House floor.

The bills were introduced in March by the same members of Congress who introduced similar legislation in the 109th Congress Sens. Chris Dodd (D-Conn.) and Richard Lugar (R-Ind.) in the Senate and Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) in the House of Representatives.

Although the 2007 bill is similar to its counterpart from the previous Congress, there are significant differences as well. The original Senate version and the version that never progressed in the House in the last Congress would have given reporters an absolute privilege against compelled disclosure of confidential sources, except when there was an imminent threat to national security. The Senate version of the bill was revised after hearings before the Judiciary Committee and would have given reporters a qualified privilege to protect both their confidential sources and their newsgathering materials.

The current bills are something of a compromise between the House and Senate bills from the previous Congress. In both the Senate and the House, the new bills would require reporters to divulge their confidential sources only when one of four situations exists: (1) the information is needed to prevent “imminent and actual harm to national security” (the current House amendments would change this to “an act of terrorism” against the United States or its allies or “other significant and specified harm to national security”), (2) disclosure will “prevent imminent death” or significant bodily harm, (3) the disclosure relates to the leak of a significant trade secret; or (4) the disclosure relates to the leak of personal or financial information revealed in violation of existing federal laws.

If one of these four exceptions applies, the current bill would then require a court to balance the public interest in compelling disclosure against the public interest in gathering and disseminating news and information before finding the privilege had been overcome.

The Senate and House bills also both provide a qualified privilege for newsgathering materials and information that does not relate to a confidential source. This privilege could be overcome if other sources of the information had been exhausted and the information was essential to a case.

The House Judiciary Committee held its first hearing on the bill in June and heard the testimony of five witnesses, including both journalists and attorneys.

The witnesses 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 reporters would have to choose to reveal their sources or go to jail, and that neither was an option. (The Plain Dealer printed one of the articles after another newspaper broke the story.)

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 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 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 a common criminal for reporting a story of importance to the public,” Taricani told the panel.

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.

Paul Boyle, senior vice president of government affairs for the Newspaper Association of America, said this language “protects bloggers involved in newsgathering and disseminating information to the public.”

Boyle said a judge would “ultimately make the call if a particular blogger is a covered entity or not.”

Thirty-three states and the District of Columbia have shield laws on the books, and all the other states, except for one, recognize some form of a privilege for journalists. ?