Senate Commitee Backs Reporter Shield Law by 15-2 Vote

Shield Law's Details Raise Concerns For Journalists
Shield Law's Details Raise Concerns -- For Journalists
By Joe Strupp - E & P
Published: October 05, 2007

While the latest version of a federal shield law is moving ahead with promise, as a Senate committee voted this week to pass it along to the full governing body, some elements of the proposal remain controversial and unclear.

Among those are the definition of a journalist and an exemption to source protection for national security issues.

In both the current Senate and House versions of the bill, the definition of journalism is stated to be "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public" with those protected by the law to include "a person who is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such person."

Such definitions would appear to include even the smallest independent Web site or newsletter, observers say, with no requirement for an income stipulation or minimum audience.

"Anyone who is routinely practicing, whether in print, broadcast or on the Internet, and can demonstrate they have an audience of some sort are going to have a very good shot at demonstrating they are a journalist," says Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press. "I am happy with that definition."

Others, such as Keith Woods, dean of faculty at The Poynter Institute, noted concerns about such a broad definition, saying it could prompt abuse by non-traditional media seeking protections. But he said the broader approach is best when seeking to break through the federal shield barrier. "That is a problem, but that is all it is," he told E&P. "It is not an excuse to stop. There is a strong need for a federal shield law for journalists. That it is difficult to nail down a job description is not a reason to stop."

David Westphal, Washington editor for McClatchy, also sided with the broader definition, claiming it can be worked out once the law is passed. "Early in this discussion, the question of who is a journalist felt like a fundamental stoppage to the whole thing," he said. "First Amendment supporters felt it was too critical to let this definition of a journalist trump the idea. The approach has been to get as broad a read on it as possible."

But the broad definition may not stick. Rep. Rick Boucher (D-Virg.), a co-sponsor of the House version -- which passed through committee six weeks ago -- plans to introduce a measure that would sharply define a journalist.

His change would define it as someone with "a substantial portion of income" from journalism or someone who "maintains his livelihood through the exercise of journalism efforts." Boucher told E&P that the narrower definition is needed to stop someone who "in an effort to evade a subpoena sets up a blog."

"Being a journalist is clearly defined [in the current legislative form] but the question was would anyone who does this even to a small extent qualify?" he told E&P. "We have said it has to be regularly and you have to earn your income from it."

But Boucher added, "a person who blogs regularly and earns substantial income would qualify. Someone like Drudge or another established blog."

Max Frankel, the former executive editor of The New York Times, says seeking to define a journalist in any terms is risky. "It is a big problem," he says of the legislation. "Is David Halberstam a journalist or not when all he does is write books? Can you take a blogger or a professor of history? Trying to define the rules of the road is very fraught with difficulties.

"We are in an era where the very definition of news and news distribution is exploding," he added. "Who qualifies as a gatherer of news is one big problem to be defined by the future and I suspect the law will drag behind it."

Frankel, who was the Times' Washington bureau chief during the Pentagon Papers dispute in 1971, cited the shield law's exemption for national security issues, too. "That is where most of the problem is," he said. "The Pentagon Papers is proof that at the highest level, most judges get wobbly in the area of national security."

Westphal agreed that a national security exemption would lessen the protection, but said it was worth it to have the overall law approved. "That does not protect reporters involved in national security cases as much as reporters not involved in national security cases," he said. "But the language at this point, we are prepared to live with."

No dates have been set for the Senate or House versions to be considered by the full bodies. But both are expected to be taken up again before the end of the year.

House Easily Passes Shield Law -- Bush Promises Veto
House Easily Passes Shield Law -- Bush Promises Veto
By E&P Staff and The Associated Press
Published: October 16, 2007 10:30 PM ET

WASHINGTON - Saying the free flow of information must not be choked off, the House on Tuesday took up a media shield bill to protect the confidentiality of reporters' sources in most federal court cases. The White House, warning that the bill would encourage leaks of classified information, threatened a veto.

The House overwhelmingly approved the bill Tuesday. The measure was passed on a bipartisan vote, 398-21, with 176 Republicans joining virtually all Democrats to support the bill.

The White House issued a statement Tuesday afternoon saying President Bush's advisers would recommend he veto the legislation unless it's changed, claiming the bill is too broad and could harm national security.

"It is likely that the legislation will encourage more leaks of classified information by giving leakers such a formidable shield behind which they can hide," the statement read.

Under the bill, reporters could still be forced to disclose information on sources if that information is needed to prevent acts of terrorism or harm to the national security.

That wasn't enough for the White House, which said the privileges given to reporters "could severely frustrate ?- an in some cases completely eviscerate ?- the ability to investigate acts of terrorism or threats to national security."

Advocates of press freedom have pushed the issue this year in the wake of several high-profile cases, including subpoenas for reporters to testify in a probe into the leak of a CIA operative's identity.

Supporters pointed to press reports on Abu Ghraib, clandestine CIA prisons and shoddy conditions at Walter Reed Army Medical Center as examples where source confidentiality was crucial.

More than 50 news outlets, including The AP, support the bill, which faces an uncertain future in the Senate.

Rep. Mike Pence, R-Ind., a conservative who cosponsored the bill with Rep. Rick Boucher, D-Va., said he promoted the bill because "I believe the only check on government power in real time is a free and independent press." The act, he said, "is not about protecting reporters, it's about protecting the public's right to know."

The Justice Department and the Office of the Director of National Intelligence are on record as opposing the legislation, saying it would make it nearly impossible to enforce federal laws pertaining to the unauthorized release of classified information. Justice also said the bill's definition of who is a journalist is too broad.

But backers said the bill was crafted to strike a balance between the need to protect a reporters' sources and the need for courts to see critical pieces of information.

Exceptions to the reporter shield are allowed to prevent an act of terrorism, apprehend the source of a past terrorist attack or stop harm to national security. Disclosures can also be ordered to prevent imminent death or significant bodily harm, or to identify a person who has revealed trade secrets or information involving personal medical or financial records.

The final bill consists of "a lot of compromising," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "This has required enormous amounts of time and money and effort" by media and nonprofit groups. Pushing a legislative agenda, she said, "does not come natural to us."

The impetus, she said, was more than 40 cases in the past three years where reporters have been asked to identify sources or testify in federal criminal and civil cases.

"America is not a country where journalists should be jailed," said Clint Brown, national president of the Society of Professional Journalists. "This bill will allow the working press and those acting as journalists to serve society without fear of reprisal or intrusion from overzealous prosecutors."

Former New York Times reporter Judith Miller was jailed for 85 days in 2005 for refusing to identify which Bush administration officials had talked with her about CIA agent Valerie Plame.

The Justice Department, in questioning the need for the legislation, said it had approved the issuances of subpoenas to reporters seeking confidential source information in only 19 cases between 1992 and 2006.

The Supreme Court in 1972 ruled that journalist-source relationships were not protected under the Constitution, and currently reporters have no privileges to refuse to appear and testify in federal legal proceedings. The situation is different in state courts, with 33 states having media shield statutes and 16 others with judicial precedents protecting reporters.

A similar bill, sponsored by Sen. Arlen Specter, R-Pa., cleared the Senate Judiciary Committee earlier this month, but it's uncertain if the full Senate will take it up in the final legislative weeks of this year.

Didn't read all that, but my issues with shield laws are, should "journalists" be required to divulge sources when they know that the source has broken a law, for instance divulging Grand Jury testimony or findings, or breaking an employment agreement forbidding disclosure of work related information? It's nice to know stuff, but it isn't nice to break the law to do it.

The biggest problem is that "journalists" can fabricate news using unnamed, and imaginary sources. The news today, as it always has, demands a grain of salt with each report. It wouldn't be necessary if "journalists" had integrity, but there are many examples of the need for ratings, or a political agenda, driving journalism.