Reporters' Shield of Dreams

Federal law would keep journalists out of jail

Journalists and Capitol Hill allies fighting to enact a federal shield law protecting reporters' confidential sources say there is a fighting chance to enact legislation this year. Aiding their cause is the uproar over the imprisonment of New York Times reporter Judith Miller and the recent unmasking of Watergate source Mark Felt.

“Lawmakers are starting to realize more that keeping a source confidential is crucial to getting information to the public,” says John Sturm, president of the Newspaper Association of America, which is leading the media's lobbying effort for a federal shield law.

The Senate Judiciary Committee will hold a hearing July 20 on a measure that would give journalists nearly absolute protection from federal court orders to disclose the names of confidential sources. “Forty-nine states have it in some form, and we ought to consider it at the federal level,” says committee Chairman Arlen Specter (R-Pa.).

A companion bill is pending in the House, although a hearing isn't expected until September or October. Nevertheless, the House is expected to pass the bill first because the Senate will soon get bogged down over Supreme Court nominees and reauthorizing the Patriot Act.

No Shortage of Support

House passage and a strong show of support from the Senate's rank and file may be all that are needed to get the bill enacted this year. If he can't make room on the floor calendar for it, Senate Majority Leader Bill Frist (R-Tenn.) could be persuaded to pass it by tacking the measure as an amendment to an unrelated bill sailing for passage at the end of the year.

The Senate bill is authored by Connecticut Democrat Christopher Dodd and Indiana Republican Richard Lugar and currently has 10 co-sponsors. The House version is authored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.), who have enlisted 47 co-sponsors.

Debate over a shield law comes as several news organizations, including ABC, CBS and the Associated Press, have recently faced subpoenas to reveal confidential sources. Besides Miller's well publicized case, reporters also have been ordered to reveal sources regarding Wen Ho Lee, a former Los Alamos National Lab physicist suing the Department of Energy over dropped espionage charges against him.

While the bill has faced a minimum of resistance, one issue has to be worked out prior to its passage: how much protection the law should offer. Both bills currently give reporters absolute protection from government orders to reveal sources, although Sturm acknowledges that such blanket protection probably won't fly with lawmakers and he expects some narrow exemptions to be added.

But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says exemptions could make the shield ineffective: “Government agencies in Washington can come up with all sorts of reasons to get around the shield.” Federal grand juries, which operate in secret, are also likely to abuse exemptions, she believes. “If a grand jury asked a judge to subpoena a reporter, ” she says, “there would be no way to know whether their reasons were all B.S.”

Any exemptions, Dalglish adds, should be limited to information posing “immediate and imminent actual harm to national security.”

Currently, the only federal protection for journalists is provided by Justice Department guidelines, which require federal prosecutors to attempt all reasonable alternatives to obtaining information from other sources before issuing subpoenas to reporters.

Dalglish says the guidelines have generally worked in federal cases, but special prosecutors—such as the investigator in the Valerie Plame case—are not bound by them.