AJR  Features
From AJR,   February/March 2008

Pushing for a Vote   

Online exclusive » A journalist who won’t reveal her sources wins a court reprieve from heavy fines, as a media coalition urges Senate action on a federal shield law for reporters. But one senator may have placed a hold on the bill.

By Kevin Rector

Senate Majority Leader Harry Reid's got mail.

Two letters to be exact: one from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking minority member Arlen Specter (R-Pa.) dated March 6, and one from a coalition of more than 60 media outlets dated March 11. Both call for immediate floor consideration of a shield law that Specter sponsored and Leahy's committee sent to the full Senate last October, where it has been stalled since. A spokesman from Reid's office said in an e-mail that Sen. Jon Kyl (R-Ariz.) has placed a hold on the bill; no one from Kyl's office could be reached for comment Tuesday evening.

Kyl has been an open critic of the legislation because of national security concerns.

But why the correspondence to Reid now? Chalk it up to a new sense of urgency and disgust over the fines that had been assessed against former USA Today reporter Toni Locy by a federal judge for her refusal to identify confidential sources in her stories on post-9/11 anthrax attacks. The U.S. Court of Appeals on Tuesday granted Locy a stay on the fines pending her appeal.

Former Army scientist Steven J. Hatfill sued the federal government after being named, but never charged, as a "person of interest" in the attacks. Hatfill has demanded the names of Locy's sources to bolster his claim that the government irreparably damaged his reputation. U.S. District Court Judge Reggie B. Walton had ordered Locy to personally pay the fines, which would have jumped from $500 a day starting midnight Tuesday to $5,000 a day within two weeks, after he found her in contempt of court February 19. First Amendment supporters considered the punishment unprecedented and harsh, since the judge said she could receive no help from USA Today or anyone else. They have mobilized to push for action on the shield law by the full Senate.

"As recently demonstrated by the Locy case, relying solely on the First Amendment is simply not enough to protect the relationship between confidential sources and journalists from aggressive federal prosecutors and civil litigants," said Laura Rychak, legislative counsel for the Newspaper Association of America, a coalition leader, in an e-mail interview. "We are going to do what we can to encourage Senators to support this."

"The Locy case is a very good, simple illustration to members of Congress what the dangers are of the unfettered ability of litigants in civil cases to suck reporters in who have been covering stories of national importance," said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, which is helping to organize the coalition. "It's not clouded with a lot of political BS like some of the cases we've been involved with lately. It's a very good illustration of how someone who was just doing their job can be forced into bankruptcy."

"Journalists aren't able to look to the courts to help them," said First Amendment attorney Charles Tobin, who has been working with the coalition. "It's essential that Congress step in and fill the void."

The House passed similar legislation last year by a vote of 398-21. That margin made the bill impervious to a possible veto by President Bush. The bill's supporters are seeking a similar veto-proof margin in the Senate.

The media coalition is focused on immediately jump-starting the legislative process. "We need to get a vote on it and we need to have the entire package conferenced so we can get a resolution," says Dalglish. "We are just continuing to work in the trenches [to] get a vote for cloture, which brings the bill to the floor... We are working very hard at that." If the Senate passes its own measure, a House-Senate conference committee would be convened to work out the differences.

The coalition's letter emphasizes that "the time is now for the protection of confidential sources, and the safeguarding of the public's right to know. This issue is too important to remain unresolved. We urge you to support immediate and favorable Senate floor consideration."

There is some debate about the bill's language on who would be protected. Many say it will leave bloggers and other unpaid journalists out to dry because of language in the House version that defines "covered persons" as those for whom journalism serves as a "substantial portion of [their] livelihood" or as the source of "substantial financial gain." While high-profile bloggers like Perez Hilton make money off their blogs, many others don't. The Senate bill doesn't address the question of pay.

Dalglish says coverage issues could be resolved by tinkering with the bill. "My hope is that the final version of the bill will also include nontraditional journalists who routinely gather news and information and disseminate it to an audience, do something to it editorially and who are functioning as journalists," she said. "I'm optimistic that we will be able to come up with some language that will do the trick there."

But even if it isn't resolved, the legislation might have to be urged forward for who it does protect rather than delayed for who it doesn't protect, said Tobin. "People are going to need to make choices," said Tobin. "Do we want to forgo protection for the New York Times and Washington Post so that the pajama bloggers can do their thing as well? I think it's a difficult decision because everyone should have the same free speech rights, but as a practical matter we're going to need to do some line drawing to get this legislation passed."

In the media coalition's letter to Reid Tuesday, emphasis was placed on bipartisan support of a federal shield law in both the House and the Senate Judiciary Committee as well as among more than 30 state attorneys general. The letter also noted that 49 states and Washington, D.C., have "either common law or codified protection for confidential sources," and called the "chilling order" initially issued in Locy's case a reflection of "a growing trend by the federal government and civil litigants to coerce journalists to reveal their sources."

"More than 40 reporters and media organizations have been subpoenaed or questioned about their confidential sources, their notes, and their work product in criminal and civil cases in federal court over the last few years," the letter reads. "It is this trend that threatens the integrity of investigative journalism and underscores the need for a federal shield law."

Kevin Rector is an AJR editorial assistant.