Time is running out on a shield bill

From the Summer 2008 issue of The News Media & The Law, page 1.

I spent a day in May walking the halls of the U.S. Senate with subpoenaed former USA Today reporter Toni Locy. As we went from office to office, our message to lawmakers was simple:

As Matthew Pollack’s story on page 11 reports, Locy came dangerously close to losing her life savings and, possibly, her freedom. Until former government scientist Steven Hatfill and the Department of Justice reached a multi-million dollar settlement in a Privacy Act lawsuit in June, Locy was on the hook for refusing to identify all of her sources over a multi-year period who told her anything at all about the anthrax investigation. We told lawmakers and their staffs the stakes were high for reporters protecting confidential sources and they needed to pass a federal shield law as soon as possible.

With the Hatfill settlement, Locy appears to have dodged a fast-moving bullet. But in late July, it became even clearer that time is running out for the shield law. This time, the urgency is dictated by Congress’s greatly abbreviated election-year schedule and the Senate’s convoluted voting rules.

Even those who have spent years covering Capitol Hill have trouble sorting out the procedural games those folks play on each other. As I write this column, the U.S. Senate has just voted not to vote on a motion to proceed with the reporter’s privilege bill submitted by the Senate Judiciary Committee. (Got that?) Unfortunately, the shield law got caught up in the party politics surrounding the energy bill.

If we’re lucky, the media probably has one last long shot at getting a federal shield law before the end of the 110th Congress. The vote could take place on a motion by Senate Majority leader Harry Reid (D-Nev.) after the August recess.

When you’ve invested so much time, energy and organizational resources to explain to lawmakers and the public how a reporter’s privilege works, it’s infuriating to listen to administration officials raise vague, unsubstantiated alarms about how shield laws threaten the entire criminal justice and national security systems.

In truth, 36 states and the District of Columbia have statutory or court rule-based privileges for reporters to avoid testifying in state proceedings except in extremely compelling circumstances. In just the past few months, Utah, Maine and Hawaii have been added to the list. Another 13 states recognize the privilege based on court decisions. In June, 41 state attorneys general wrote a letter to Senate leaders endorsing the senate bill, explaining that justice can still be served admirably when a reporter’s privilege is recognized.

As we’ve reported, the House of Representatives voted 398-21 last October in support of a comprehensive bill that would have covered virtually ever subpoena served in a federal proceeding. The privilege would not be “absolute.” Rather, it could be overcome with a proper showing, for example, that protecting the information sought has great national security implications.

Much as I like the House bill, introduced by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.), it has a slim chance of gathering support in the Senate, which has been intent on stripping its bill to only cover confidential source information and instituting multiple layers of tediously redundant national security provisions.

But, as one Washington media lawyer involved in the shield lobbying effort keeps telling me: We can’t let the perfect be the enemy of the good. So the Senate bill is good enough.

I believe we have the votes to overwhelmingly adopt a federal shield law. But with the election looming and Congress not planning to spend much time working over the next three months, time is running out indeed.

Once again, a valued member of the Reporters Committee’s steering committee has died much too soon. Tim Russert’s death in June saddened all of us. He enthusiastically supported the Reporters Committee’s mission and was generous with his advice and contributions to the organization.

In the recent past, we have also lost Peter Jennings of ABC News and David Rosenbaum of The New York Times. Like Tim, they had a profound commitment to the public’s right to know and understand what was going on in their community, nation and world. We miss them all.