Trying Again  | American Journalism Review
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From AJR,   October/November 2008

Trying Again   

Online Exclusive Media groups will renew their push for a federal shield law when the new Congress convenes.

By Lindsay Kalter
Lindsay Kalter (lindsay.kalter@gmail.com) is an Ann Arbor-based writer.      


A coalition of about 50 media organizations will renew lobbying efforts next year for a federal shield law for journalists, which died in the current Congress.

The bill, which would allow the government to subpoena journalists for information about their confidential sources only as a last resort, died in the Senate July 30 when supporters could not round up the necessary 60 votes to cut off discussion and bring it to a vote. The tally was 51-43 in favor of the measure. The House approved a similar bill last October.

Society of Professional Journalists President David Aeikens, who lobbied for the bill in Washington in July with about 10 fellow SPJ members, says when the campaign to enact the law resumes before the next Congress, "it's likely that we'll be back to square one."

Proponents of the bill say it is essential to protect journalists in the wake of a flurry of high-profile cases in recent years involving confidential sources. In 2005, then-New York Times reporter Judith Miller spent 85 days in jail for refusing to reveal a confidential government source who leaked the name of CIA operative Valerie Plame. Former USA Today reporter Toni Locy was ordered by a federal judge to pay up to $5,000 a day in fines until she revealed her anonymous sources in the case of former Army scientist Steven J. Hatfill, named as a "person of interest" but never charged in the 2001 anthrax attacks. The U.S. Court of Appeals granted Locy a stay on the fines on March 11. On June 27, the Justice Department agreed to pay Hatfill $5.8 million to settle the case.

Stories based on anonymous sources are often criticized by politicians and members of the public, who say they lack credibility. But many journalists and their supporters argue that some vitally important stories would not come to light without them.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says supporters of the bill came closer to success during the current Congress than ever before. "We had overwhelming support in the House and solid support in the Senate," she says. "We will reconfigure, reassemble our coalition and try to get it reintroduced as soon as possible."

The coalition includes the American Society of Newspaper Editors, the Newspaper Association of America, the Associated Press and other news organizations and media companies.

The measure approved by the House differs from the one that failed in the Senate. The Senate version protects journalists from being forced to share the identity of confidential and information obtained from them. The House bill offers broader protection to all information gathered during the reporting process, confidential or not. Both versions would allow the courts to require testimony about confidential sources if national security or human life is at stake.

Sens. Arlen Specter (R-Pa.) and Patrick Leahy (D-Vt.) have led the charge for the bill in the Senate. Dalglish says Sen. Jon Kyl (R-Ariz.), who adamantly opposes the bill, required that it undergo a full 30 hours of debate, which was not feasible given the focus last July on energy legislation.

"They have some procedures in the Senate, and any one individual senator can hold something up," Dalglish says. "Sen. Kyl repeatedly did that to this bill. With Congress being so distracted, we were just not able to get it on the floor."

Kyl's office did not respond to requests for comment.

Laurie Babinski, SPJ's Washington counsel, says there is a growing recognition of the bill's importance. Although it died this year, she says it has made "tremendous progress."

The bill was introduced nearly four years ago after Jim Taricani, a reporter for WJAR-TV in Providence, was sentenced to six months of home confinement for refusing to reveal the name of the source who gave him an FBI surveillance tape of a Providence city official taking a bribe. Sen. Christopher J. Dodd (D-Conn.) then introduced a bill to protect journalists from being forced to divulge the identity of anonymous sources.

"When this started I thought it would take four to six years to pull it off," Dalglish says. "So we're on schedule."

Babinski says that although there are certain circumstances in which reporters should be called on to testify in court, such as when there is a national security risk or a threat to human life, all other sources of information should be tapped first, as the bill provides. Thirty states have shield laws, and others offer limited protection as a result of court decisions.

A federal shield law would allow journalists to report information "without fear of retribution," SPJ's Aeikens says. "This is our legislative priority. We will work very hard to make the shield bill a shield law. We don't think journalists should be put in jail for doing their jobs."

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