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TSA’s Intimidation of Bloggers Heightens Interest in Proposed Federal Shield Law—But Will Bloggers Be Protected?

January 05, 2010 04:00 PM
by Jill Marcellus
Legislation to protect reporters from naming sources in federal investigations is advancing in Congress, but controversy remains over who qualifies for protection.

After Version Passes in House, Shield Bill Clears Senate Committee

In the wake of the attempted terrorist attack on a Northwest Airlines plane on Christmas Day, the Transportation Security Administration issued new security directives. When several bloggers published a copy of those directives, the TSA visited the bloggers at their homes, demanded to know the sources of the information, and seized computers.  One of the bloggers complied with the TSA’s requests, noting that he was not protected by any shield law.

The TSA’s aggressive approach caused a predictable outcry from defenders of freedom of the press.  It also put renewed focus on the “Free Flow of Information Act,” a bill pending in Congress.

Over the past year, Congress has debated legislation that would protect journalists when they are asked to reveal confidential sources for federal investigations.  While most states have “shield laws” similar to the proposed Free Flow of Information Act, state shield laws offer protection to reporters only with respect to state and local 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.”

Although the House of Representatives passed a version in March, the Senate Judiciary Committee only recently approved the bill for a full-Senate vote. Sen. Charles Schumer, D-N.Y., a key proponent of the bill, hailed it as “the right balance between the national security concerns and the public’s right to know,” struck after several months of debate.

The delay partly hinged on the Senate’s definition of journalist, which several senators believed too broad since it would potentially cover bloggers and freelance writers. As the Citizen Media Law Project points out, the House bill’s language, limiting protection to someone who writes for a “substantial portion of the person's livelihood or for substantial financial gain,” might leave out many writers covered by the Senate bill and cause problems in combining the two versions.

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. 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 the 2008 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 may have been responsible. Hatfill sued the government and eventually received a settlement, and Locy didn’t have to pay the fines.

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.”

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 not afforded to other citizens. The shield law would not just defend journalists, but “help ensure that whistle-blowers and other sources will be able to provide important information to reporters knowing they can do so in confidence,” the editorial says.

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.

In a recent opinion piece in The Weekly Standard, Fred Barnes deemed the pending bill “The Facilitating Leaks Act,” saying it “would do far more harm than good.” Barnes quoted Republican Sen. Jon Kyl of Arizona as saying the shield legislation is “a solution in search of a problem. There is no demonstrable need for this. It's not as if a big dagger is hanging over anybody's head.”

Several bloggers, meanwhile, worry that the bill will not go far enough. David Dayen at FireDogLake points to last week's case, in which two bloggers received home visits and subpoenas for their source of an unclassified Transportation Security Administration document, as evidence of “how bloggers are at risk because of the lack of a journalist shield law extending to them.”

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