Proposed federal shield law resurfaces again

Two San Francisco Chronicle investigative reporters made national news after breaking the steroids scandal involving Barry Bonds and other star athletes in 2004. The journalists were honored by the president for their reporting, which sparked a Congressional investigation and arguably saved lives by stemming the tide of rampant steroid use by athletes of all ages.

But federal prosecutors were uninterested in their journalistic accomplishments. Instead, prosecutors wanted to know how Lance Williams and Mark Fainaru-Wada obtained their information, and specifically who leaked the sealed grand jury testimony that was published.

The pair was held in civil contempt for refusing to reveal their sources, and could have been jailed until they complied with the order to testify. If not for attorney Troy Ellerman coming forward and admitting to being the source of the leak, a stint behind bars was inevitable for the two sports reporters.

This story is one among many that contributed to a wave of support for a federal shield law for journalists. Thirty-one states and the District of Columbia had put shield laws in place when former Sen. Christopher Dodd, (D-Conn.) filed the Free Speech Protection Act in 2004 — the first bill of its kind since the 1980s. But, ultimately, it failed to pass.

Now seven years later, nine more states have passed their own legislation to protect journalists from being forced to reveal their sources, but the battle to enact federal protection goes on.

Rep. Mike Pence (R-Ind.) made the latest move when he filed the Free Flow of Information Act of 2011 (HR 2932) on Sept. 14.

“I believe the only check on government power in real time is a free and independent press,” Pence said in an interview. “During a time when the role of government in our lives and in our enterprises seems to grow larger every day, ensuring the vitality of a free and independent press is more important than ever.”

Pence and his former Democratic counterpart, Rep. Rick Boucher of Virginia, successfully passed the House bill in 2007 and 2009, but the legislation hit snags in the Senate in both cases. The defeats came despite broad bi-partisan support, leaving many questioning what went wrong.

“We got very close,” said Kurt Wimmer, a media law attorney based in Washington, D.C., who has worked on the legislation since its inception. “But close only counts in horseshoes and hand grenades, and this is not either of those.”

Humble beginnings

Some members of the media have called for a federal shield law for nearly 40 years.

In the landmark 1972 case Branzburg v. Hayes, the U.S. Supreme Court came down hard against journalists, ruling that the First Amendment does not exempt reporters from testifying before a grand jury if they have witnessed a crime. In other words, reporters must reveal their sources.

“The Supreme Court basically said there is no privilege for reporters,” Wimmer said.

Fortunately for journalists, Wimmer said, Justice Lewis Powell wrote that courts should strike a balance between the public’s right to know (or the government’s need for information) and a journalists’ right to protect sources. Powell’s concurrence, combined with the the opinion of the court’s four dissenters who said the First Amendment should protect reporters, led to the establishment of various balancing tests around the nation.

While some in the media saw a federal solution as the best way forward, others were concerned that another clash with the high court could result in further erosion of journalistic freedom.

“Until [the effort in 2004] I think there was a feeling that we were being protected by the courts enough so that going to the legislature created more risk than reward,” said George Freeman, assistant general counsel for The New York Times.

“In light of reporters going to jail,” he said, “We felt the time was right to get federal legislation that would parallel what has been passed in a number of states.”

The well-publicized cases of journalists facing fines or jail time in the mid-2000s, including Williams and Fainaru-Wada, New York Times reporter Judith Miller, and USA Today reporter Toni Locy, contributed to the developing consensus.

“It would seem that our founding fathers provided us with a clear and simple guarantee of a free press that would protect the public’s right to know,” Pence said. “However, over time that freedom eroded, specifically with regard to the protection of confidential sources.”

Disagreement over the shield law still existed when Dodd made the initial step forward in 2004, which was soon followed by Pence and Boucher filing a similar measure in the House. However, the alliance of supporters has only solidified as legal issues continue to arise, culminating with the subpoena of New York Times reporter James Risen seeking his sources for a book published in 2006.

Risen is currently awaiting a ruling by the Fourth U.S. Circuit Court of Appeals, where U.S. prosecutors are challenging a federal district court judge’s decision to limit the scope of Risen’s testimony in the trial of former CIA officer Jeffrey Sterling, who is accused by the government of leaking classified information to Risen for his book.

The Newspaper Association of America leads the current 70-member coalition of media organizations, which includes The Reporters Committee for Freedom of the Press, major newspaper groups and television networks, who are actively engaged in promoting a shield law.

“We take that (consensus) for granted now, but the reason there has never been a shield law bill is because the industry itself couldn’t come to agreement on the legislation,” Wimmer said.

A Wiki problem

On July 30, 2008, the federal shield law came tantalizingly close to becoming a reality. Having already passed the House overwhelmingly, 398-21, a vote for cloture took place in the Senate. But the cloture vote, a procedural step necessary to bring a bill to the floor for debate, fell short of the 60 votes needed.

In 2010, with the House again having already passed its bill, the Senate version was derailed by a new development: WikiLeaks. The website garnered international attention when it published classified information involving a number of countries.

In the wake of several disclosures embarrassing for the United States, including the release of sensitive communications within the State Department, Congressional hearings were held to determine if WikiLeaks could be prosecuted under the Espionage Act. The federal shield law was viewed by some witnesses at the hearing as being part of the problem instead of the solution.

“I think it’s a little ironic that the whole frenzy over WikiLeaks made it difficult to pass the bill when passing the bill is exactly what you needed to define exactly who is a journalist,” Wimmer said.

Senators Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.) were among the lawmakers most concerned about national security, leading to the bill’s amendment. The definition of a journalist also came under more intense scrutiny, even though Wimmer said there is “no way in the world” a court would uphold WikiLeaks as journalism.

“We pretty much spent all of 2010 working on the definition of journalism,” said Sophia Cope, director of government affairs and legislative counsel for the Newspaper Association of America.

By the time lawmakers had come to agreement on the language of the bill, the 2010 election season arrived, pushing aside most legislative priorities.

The next chance

Wimmer called both Pence and Sen. Charles Schumer (D-N.Y.) “champions” of the shield law, citing Schumer’s particular importance because of his leadership position in the Senate. “He really led the argument for it and put himself on the line for it. That’s exactly what we need for the next window of opportunity.”

Although Dodd and Boucher have left Congress, and Pence is in his final term, those working on the legislation feel it will continue to have a strong chance of becoming law. Wimmer said the odds of passage might increase after the 2012 presidential election.

Freeman said the number of changes already made to the bill give it little room to be bogged down for additional amendments. “In the process in the last term we made compromises which I felt were difficult ones, but ones that were worth making to get the bill passed,” he said. “I think that we’ve come to the point that to weaken the bill any more at the end of last term would be to eviscerate it to the point that I’m not sure that I would think it’s worthwhile.”

Cope, who helped craft the legislation into its current form, is optimistic that Schumer will file a Senate version of the bill in early 2012. According to Cope, Schumer’s staff assured her that the issue is still a priority for the third-term senator.

“Right now it’s about finding the right window and timing,” Cope said. “We have more than a year to go, so obviously anything can happen.”