You’d think that with the “mainstream media” under fire in so many quarters (given the issues, on the left and the right) a shield law protecting reporters would be difficult to pass now — but, USA Today reports, Congress is now poised to pass one with bipartisan support:
A House bill that would help reporters protect confidential sources will pass easily this week, supporters say, despite opposition from the Bush administration.
“I believe we’ll have a strong bipartisan vote,” said Rep. Mike Pence, R-Ind., the bill’s co-author.
The Justice Department sees the proposed reporters’ shield law, as it is called, as an obstacle to law enforcement. It could “seriously impede our ability to investigate and prosecute national security matters,” spokesman Peter Carr said last week.
Even so, the bill has attracted an unusual right-left coalition.
Liberal Democrats, such as House Speaker Nancy Pelosi, have joined conservative Republicans, such as Pence, to support the bill. Although no floor vote has yet been scheduled in the Senate, the chamber’s Judiciary Committee this month approved its version of the shield bill by a 15-2 vote.
In fact, it could be argued that the Bush administration has made a shield law more desirable than ever. There have been a host of issues (pre-Iraq war pronouncements, official statements about how the occupation was going right after the war, what the government said it was doing during Hurricane Katrina, the treatment of prisoners, the Dubai ports) where official pronouncements have proven inoperative when new facts came out. And some of the facts that later came out outraged conservatives as much as liberals.
Aside from that, the timing of this measure could not be better: reporters may soon have someone in the AG’s office who understands that news-gathering is not an evil hit-gathering scrounge hunt but an attempt to assess a situation and then present the facts to readers:
News organizations have been pushing for a federal law to protect reporters’ sources since the Supreme Court ruled in 1972 that the First Amendment gives journalists no right to refuse to name them. Backers say the House vote represents a major breakthrough. “It’s kind of a ‘pinch me’ moment,” Pence said.
It comes the same week that the Senate opens confirmation hearings for President Bush’s nominee to be attorney general, Michael Mukasey. The former federal judge worked as a reporter for United Press International while he was in college and later represented The Wall Street Journal and the New York Daily News. On the bench, he ruled against forcing a TV reporter to provide outtakes of an interview to a defendant in a civil lawsuit.
Hopes are high that the new AG will be a more understanding voice within the Bush administration:
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, is hopeful Mukasey will soften the administration. “I would not expect him to come out and support this, but I would not see him making an effort to destroy it,” she said.
The House bill would prohibit courts and federal prosecutors from forcing journalists to reveal sources except in cases where the information is vital to protecting national security or to prosecuting a crime and is not available by any other means. The bill defines journalists as those “regularly involved in newsgathering” and making “substantial income” from it, said Rep. Rick Boucher, D-Va., the bill’s other co-author. He said that would cover some, but not all, bloggers.
Thirty-three states and the District of Columbia have enacted similar shield laws. More than 50 news organizations, including Gannett, owner of USA TODAY, support a federal shield law. Sponsors say it will benefit more than the news media.“The basic reason we’re passing this is to protect the public’s right to know,” Boucher said. He argued that whistle-blowers will be discouraged from talking to reporters if they fear their identities might be disclosed.
USA Today also notes that there are many arguments against the shield law. Among them:
–Not all leaks entail people who are whistle-blowers who are risking their jobs to leak. The “Scooter” Libby case is one of them.
–There are people who feel they are smeared by leaks engineered by people with motives who then hide behind a reporter’s right to protect a source’s identity.
–The Bush administration says a shield law will hurt the fight against terrorism.
–The Bush administration says there are plenty of laws on the books that work right now.
But, the paper notes:
Federal prosecutors subpoena reporters “very rarely,” Carr said. He said the department has sought reporters’ confidential sources 19 times since 1991.
That figure does not, however, include subpoenas from special prosecutors and attorneys for private clients. By Dalglish’s count, at least 40 reporters have been subpoenaed to turn over confidential information in the past three years, and courts tend to rule against the journalists.
Refusal to comply with the court has resulted in long jail sentences for some journalists. Joshua Wolf, a freelance videographer who refused to turn over tape of a protest to federal authorities, served 226 days.
Another argument against shield laws that comes up in verbal arguments with people who oppose them, is that some contend it means reporters can make up news sources and quotes.
But anyone who has worked in any capacity on a newspaper or magazine knows that editors do question reporters about sources and this problem is a rare one — which is why it is big news when it happens and means grave professional consequences for those who indulge in it.
ADDITIONAL READING:
Washington Post: Shield Law Perils
Editor & Publisher: Senate Committee Backs Shield Law
Wikipedia Shield Laws
First Amendment Center: Shield Laws
Poynter: A Guide To Journalists Shield Laws
Reporter’s Privilege Compendium
California Shield Law
Senator Leads Drive For Federal Shield Law
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.