Holding court with reporters recently, Sen. Arlen Specter, a Pennsylvania Republican, joked that U.S. Justice Department officials object to his bill guaranteeing the media's right to protect confidential sources because they want the ability to "waterboard" errant journalists.
As those around him chuckled, the dry-witted chairman of the Senate Judiciary Committee arched an eyebrow. "What are you laughing at?" Specter chided. "It might be you."
While journalists aren't actually in danger of facing drowning torture (not yet, at least), antagonism toward the media on Capitol Hill certainly is rising. And given the inflamed atmosphere, media rights groups warn the prospects for passing a federal shield law appear to be sinking quickly.
Specter's "Free Flow of Information Act" would set a national standard for the protection of confidential sources. It would compel journalists either to reveal their sources or face contempt-of-court charges only when the court has exhausted all other sources of information, and most important when the public's interest in obtaining the information outweighs its interest in protecting confidential sources.
In essence, the bill gives journalists a qualified privilege to protect their sources in federal proceedings, and it comes at a time when that privilege is being challenged with increasing frequency. In the past two years, more than 30 reporters have been subpoenaed or questioned by federal court officials about their confidential sources.
A combination of court decisions and shield laws in 49 states and the District of Columbia offers reporters some form of protection in local courts, but that has done little to deter the recent spate of federal legal battles, including the incarceration of then-New York Times reporter Judith Miller and a recent $750,000 settlement between five media organizations the New York Times, the Washington Post, the Los Angeles Times, ABC and the Associated Press and nuclear scientist Wen Ho Lee.
Miller, who never wrote about CIA operative Valerie Plame, spent 85 days in jail last year for refusing to testify about sources who might have leaked information outing Plame as a CIA agent. Wen Ho Lee, once under investigation for spying, tried to get reporters to reveal the government sources who leaked information from his personnel file. In the end, the five news organizations were able to protect the confidentiality of their reporters' sources at a price.
At the same time, the Bush administration and its congressional allies have pilloried the media for revealing anti-terrorism programs despite administration objections. "It's certainly a difficult environment right now for putting a shield law forward," says Kevin Goldberg, a First Amendment attorney and counsel for the American Society of Newspaper Editors. Goldberg, who is working with several media organizations to lobby for Specter's bill, was among those deflated June 29 when, for the second time in as many weeks, the Senate Judiciary Committee failed to vote on it.
Across the U.S. Capitol in the House of Representatives that day, lawmakers were excoriating the New York Times and other major newspapers for publishing details of a Bush administration program aimed at tracking terrorists' financing. More than one called it "treason," and in a 227-to-183 vote that fell largely along party lines, the lawmakers approved a resolution not only condemning the media but also stating that they "may have placed the lives of Americans in danger."
New York Times Assistant General Counsel George Freeman says he hopes the House resolution and the mood in Congress do not jeopardize the progress of the shield law. "Whatever House members feel about the news media in general," he says, "everyone in politics ought to realize that whether you're a Republican or a Democrat, the public is better served by an informed electorate, and it's clear you can only have that if some kind of protection for confidential sources and whistle-blowers exists."
Whether that sentiment would prevail was very much in doubt in late June when the Judiciary Committee failed to vote on Specter's bill. The committee chairman said he simply couldn't get enough senators to show up to pass his bill as well as other bills on deck that afternoon. But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says she believes the charged climate also played its part. "My guess is that given how inflamed the situation between the media and Congress was yesterday, Sen. Specter didn't want to get into it," she said following the aborted vote.
The "same week the House formally passes a resolution condemning the press," Goldberg adds, "some on Capitol Hill may not want to be handing out privileges to the press."
In the days leading up to the House resolution and Specter's "waterboarding" quip, two separate legal camps weighed in with very different opinions about the proposed legislation. Assistant Attorney General William E. Moschella sent a nine-page letter to Specter opposing any form of a national shield law, and the American Bar Association, in a three-page letter, voiced its support.
Noting the bill was drafted by a bipartisan group of lawmakers, ABA Director Robert D. Evans wrote that a national law would help clear up the current state of confusion created by a "patchwork of [federal] court rulings." In addition, the bill "has been carefully crafted," the letter says, "to preserve the free flow of information to the public through a free and active press while protecting the public's right to effective law enforcement and ensuring the fair administration of justice."
The Department of Justice, however, said the bill could weaken a criminal defendant's right to a fair trial as well as undermine national security. It could also be manipulated to give terrorist organizations free rein to disseminate dangerous information, Moschella wrote, noting that the term journalist does "not exclude the agents and media outlets of hostile foreign entities."
Specter, for his part, strongly criticized the Justice Department for bringing specific concerns to him late in the process, but says he is working with the Bush administration to modify the bill.
With Congress gone for the summer and scheduled to work for only five more weeks when it returns in September, Goldberg and others warn that time is running out for action on Specter's bill this year, as well as for a similar proposal in the House that has received even less attention than the Senate version. Meanwhile, members of the Senate Judiciary Committee have made repeated moves to weaken the language so much so, advocates say, that it could jeopardize media support entirely.
Most of the changes have been in the area of national security exemptions. One of the most significant differences is the threshold for determining when failure to reveal a source would pose a threat to national security. The original language said there had to be "clear and convincing" evidence of such a threat; the new language says there simply has to be "a preponderance of the evidence." Lawmakers also removed language that would compel source disclosure in order to prevent "imminent" harm to national security. Now the wording would prevent "significant and actual" harm.
Goldberg says he believes the changes have gone a long way to win over holdouts on both sides of the aisle among them ranking committee Democrat Patrick Leahy of Vermont, who several times expressed concerns about giving journalists "blanket immunity."
Despite the changes, First Amendment advocates and media rights groups continue to endorse the shield law. Dalglish maintains that the measure is still a good one and affords journalists protections they don't currently have. "We would rather compromise on this than lose the bill entirely," she says.
Dalglish warns, however, that "the media has probably compromised as much as it is willing to," and the Newspaper Association of America also has words of caution. "Any further action could weaken support for it," says Paul Boyle, the NAA's senior vice president of public policy.
That doesn't mean the Senate Judiciary Committee is done tweaking. More amendments are pending, and while Specter says he is confident he can move the bill this year, supporters are skeptical. "I was feeling pretty good about this two weeks ago, and then this whole New York Times snit came about. People are so easy to distract," Dalglish said in late June.
Adds Goldberg, "I still want to say this will get through the Judiciary Committee. I don't think they'd be making all these changes in vain. But with every passing week, you can probably knock 5 percent off its chances of making it out of committee."