White House Seeks to Weaken Media Shield Bill

Legislation would help keep reporters protecting confidential sources out of jail

The Obama administration has proposed weakening a media shield bill that could protect reporters from being jailed if they decline to reveal their confidential sources.

The bill, co-sponsored by Sens. Charles Schumer (D-N.Y.) and Arlen Specter (D-Pa.), includes stipulations that prosecutors exhaust all other avenues in attempting to identify confidential sources of information before issuing a subpoena to a reporter. The bill includes exceptions in matters involving criminal conduct or matters of national security.

But the administration has signaled that any bill should have less restrictive exceptions and not apply to leaks in matters that are deemed to cause “significant” harm to national security. Further, judges would not independently decide what constitutes “significant” harm; rather, they would be instructed to accept executive-branch assertions in such matters.

In an interview with The New York Times, Specter characterized the administration’s conditions as “totally unacceptable.” Added Schumer in a statement, “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback.”

The White House’s position also caught press-freedom advocates by surprise. “We were in conversations with the administration up until a few days ago,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “We thought we were really reaching some accommodations. And then, bam, everything flipped. We’re not really sure why. It’s certainly a reversal of direction. It’s inconsistent with everything [Obama has] ever said about shield laws and transparency. Obviously we’re very disappointed.”

More than a dozen journalists have been subpoenaed by federal prosecutors in the last several years, the Valerie Plame CIA leak case being only one of the most prominent.

Former New York Times reporter Judith Miller spent 85 days in jail in connection with the Plame case.

“I would be deeply disappointed if the bill tilts any further towards national security than it does already,” she said in an e-mail message.

But civil cases in front of less-than-friendly judges have resulted in enormous legal bills and potentially ruinous contempt-of-court fines for other journalists. USA Today reporter Toni Locy faced thousands of dollars in fines for not revealing her sources in her reporting of the 2002 anthrax case against former Army scientist Steven Hatfill.

As a senator, Obama co-sponsored a media shield bill. And in a recent meeting with editors of several newspapers, he expressed support for the ailing industry, saying that journalism is “absolutely critical to the health of our democracy.”

The Senate shield bill is much more restrictive than a House bill that has yet to be presented for markup in the Senate Judiciary Committee, although it has been on the docket for several weeks.

“Historically, the media has bent over backward to give deference to legitimate national security claims of presidential administrations while, by contrast, several administrations have claimed national security to avoid the publication of embarrassing facts,” said Michael Macleod-Ball, acting director of the ACLU’s Washington legislative office, in a statement. “The current bill awaiting markup already has a balancing test weighted heavily in favor of administration assertions of national security.”

To many, the White House’s attempt to weaken protections for journalists conflicts with the president’s stated commitment to government transparency. “As far as we’re concerned, this is another component of transparency,” Dalglish says. “Journalists are better able to cover what government is up to when they on occasion can promise confidentiality to their sources.”