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Interior Secretary Ken Salazar, second from left, sits among White House reporters, from
left: Jake Tapper of ABC News; Chip Reid of CBS News; Jennifer Loven of the Associated
Press; and Chuck Todd of NBC News.

Congress Considers Journalist Shield Law

February 26, 2009 12:59 PM
by Emily Coakley
With new legislation introduced to protect reporters from naming sources in federal investigations, controversy ignites over who is covered and whether a shield is needed.

Media Groups Behind Legislation

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New legislation has been introduced in Congress that could protect journalists when they are asked to reveal confidential sources for federal investigations. Most states have “shield laws” similar to the proposed Free Flow of Information Act, but state shield laws offer protection to reporters only when it comes to local and state jurisdictions.

Proponents of a national shield law believe that such protection is necessary for confidential sources to continue providing important information to journalists. Dave Aeikens, president of the Society of Professional Journalists, told Fox News: “The public needs to be able to give information to the media without fear of retribution. We think that too often that the government has been coming to journalists as the first resort rather than the last resort.”

The same bill had been introduced in the 110th Congress and had passed the House but failed in the Senate. President George W. Bush was not in favor of a shield law, but then-Sen. Barack Obama, D-Ill., was one of the bill’s cosponsors.

Though many are applauding the bill’s re-introduction, some aren’t happy with the details. The Citizen Media Law Project says the House and Senate versions of the Free Flow of Information Act have different takes on who exactly is protected.

CMLP points out that the House bill includes a clause that essentially says a person must be engaged in news gathering for a “substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.” The Senate bill doesn’t include any stipulations for livelihood or financial gain. The House bill also doesn’t explain what “substantial” means. Under the House language, many bloggers and freelance writers may not be covered.

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Background: Journalists threatened by federal investigations

Media groups have long argued for a federal equivalent of state shield laws, and some high-profile cases during the last decade have kept the issue alive.

The most well-known case in recent memory is that of Judith Miller, a former New York Times reporter who spent 12 weeks in jail for refusing to testify before a grand jury in the I. Lewis “Scooter” Libby case.

Libby, who was Vice President Dick Cheney’s chief of staff until his arrest, was eventually convicted of obstructing the investigation into the alleged White House leak that outed Valerie Plame as a CIA agent in 2003.
The information about Plame’s identity had allegedly been leaked to Robert Novak, who mentioned her in a 2003 column. Miller, who wrote about the leak for The New York Times, refused to talk to the special prosecutor about her sources for the Plame information, though eventually she revealed it was Libby and testified at his trial.

But some criticized Miller for her actions in the case, accusing her of misleading her editors and not cooperating with her newspaper when articles on the case were being written. In 2005, Steve Lovelady, a Columbia Journalism Review editor, wrote, “The real tragedy of the Judy Miller case is that, in the eyes of all too many, Miller’s tarnish now rubs off on any cause with which she associates herself.”

Federal shield law advocates also pointed to last year’s case of former USA Today reporter Toni Locy. In March, a federal judge fined Locy $5,000 for each day that she refused to name sources, and further required her—not her newspaper—to pay the fines. Locy had written articles in 2003 quoting unnamed sources who told her that Stephen J. Hatfill was a suspect in the 2001 anthrax attacks.

Hatfill was never charged, and investigators now believe another man, who committed suicide last summer, was responsible. Hatfill sued the government and eventually received a settlement, and Locy didn’t have to pay the fines, according to the Free Press.

But what made Locy’s case unusual is that she told the court she couldn’t remember who had told her about Hatfill, and that she had up to a dozen confidential sources who had provided information on other cases. The judge ordered that she provide Hatfill the names of all those sources for his suit against the government.

The New York Times quoted her explaining her reluctance to identify her sources: “folks who helped me on far more sensitive stories than the two at issue in this case could be exposed.”

Most recently, last week a federal judge considered, and ultimately delayed a decision over whether to hold a Detroit Free Press reporter in contempt of court. David Ashenfelter has been ordered to tell the court the name of the person who told him that Richard Convertino, a former federal prosecutor, was being investigated by the U.S. Department of Justice.

In 2004, Convertino sued the Justice Department, alleging that his supervisors were retaliating against him for his criticizing the department in public. The retaliation took the form of leaking the internal investigation into Convertino to the public.

Convertino contends “that Ashenfelter’s refusal to identify his sources in pre-trial witness testimony makes it impossible for him to learn which of his former bosses improperly leaked word that he was being investigated, information he says is crucial to his efforts to prove retaliation in his suit.”

Ashenfelter has refused to disclose the names and invoked his Fifth Amendment right against self-incrimination.

Opinion & Analysis: Arguments for and against a federal shield law

An editorial in the Patriot-News of Harrisburg, Pa., counters criticism that shield laws offer journalists special protection other citizens don’t get. “But, in fact, such a law shields ordinary citizens—those who confidentially provide information to journalists—from retaliation by employers or others who don’t want the information to be made public,” the editorial said.

Some, such as Slate’s Jack Shafer, have argued that a federal shield law, as the current legislation is written, would have been useless to Miller and fellow subpoenaed journalist Matthew Cooper. The judge in the Libby case decided the prosecutor had proven that the information Miller and Cooper had was “‘critical and unobtainable from any other source.’ In other words, with a shield law, Miller still would have gone to jail.”

Shafer, who was against the Free Flow of Information Act introduced last session, in April said that journalists don’t get federal subpoenas as often as federal shield law advocates suggest.

Reference: Shield laws, state by state

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