WASHINGTON, D.C. — In response to federal government subpoenas issued to journalists who have been asked to reveal their confidential sources, a bill has been introduced in the U.S. House of Representatives and Senate that would allow most journalists–high school, college and professional–to protect sources who speak on condition of anonymity.
Congressmen Rick Boucher (D.-Va.) and Mike Pence (R.-Ind.) introduced “The Free Flow of Information Act of 2005,” H.R. 581, in the House of Representatives on Feb. 2. The same legislation, also known as the Media Shield Law, S.B. 340, was introduced by Sen. Richard Lugar (R.-Ind.) in the Senate on Feb. 9.
The bill’s purpose is “to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media,” according to the legislation.
According to an analysis by the American Society of Newspaper Editors, the bill applies to any journalist who makes “essential daily contributions toward the free flow of information” through newspapers, magazines, book publishing, television networks and stations, cable and satellite networks, channels and programming services, news agencies, and wire services. The legislation said the bill does not apply to individuals who operate Web sites or blogs because millions of Americans frequently use them to exchange a variety of “personal ideas and information.”
Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said Web publishers and freelancers are specifically not included in the bill because the legislators’ initial goals were to raise awareness about the issue of confidential sources and to obtain a reaction from Congress. Persons involved with the bill assume that there will be time to make changes to its wording later on, Leslie said, as the bill progresses through the House and Senate.
Under the proposed law, “No federal entity may compel a covered person to testify or produce any document in any proceedings or in connection with any issue arising under Federal Law,” unless a court finds that certain conditions are met to compel journalists to disclose information from their source.
The conditions include: a court’s finding that the government was unsuccessful in attempts to obtain the desired information from other sources; a determination that “reasonable grounds” exist to believe that a crime has been committed; a finding that the information sought is necessary to complete the investigation, prosecution or defense; or a determination that the journalist’s testimony or documents are essential in some other “substantive” way.
If the conditions for compelled disclosure are met, the journalist and the source must be given notice and an opportunity to be heard.
The bill also limits the kinds of information that federal entities can force confidential sources to reveal. The only information that can be obtained from a confidential source is information needed to verify the accuracy of published facts, and the information can only be used in relation to the time frame and subject matter of the article.
Boucher said the bill is more for the public’s benefit than for journalists.
“I am convinced that the public’s right to know will be enhanced if journalists can assure their confidential sources that their identities will remain anonymous,” Boucher said.
Boucher said he believes the bill will pass because of a “heightened sense of public sensitivity” from publicity surrounding several reporters who have recently been subpoenaed to reveal confidential sources. Boucher made reference to Judith Miller, a New York Times reporter, and Matthew Cooper, a Time magazine reporter, who could face jail time due to their refusal to disclose their sources. A panel of the D.C. Circuit Court held on Feb. 15 that no privilege protects journalists from being compelled to disclose their sources before a grand jury.
Nine journalists are currently facing criminal sanctions for refusing to obey court orders to reveal sources, according to the Reporter’s Committee for Freedom of the Press. In 2004, 12 reporters faced jail time for the same reason.
Christy Jerding, who was a senior at James Madison University in Virginia and the editor of the student newspaper, The Breeze, in 1992, received two state subpoenas that year ordering her to testify about an article that appeared in the paper. Jerding’s article included quotes from tape-recorded interviews with two students who had been charged and arrested for distributing cocaine. Jerding did not have to testify after she was able to convince the court that she did not have any additional information pertinent to the case that was not already published.
Jerding, a former Student Press Law Center intern, said the Media Shield Law could give journalists “a lot of peace of mind” if it becomes law, but said she does not believe that it will pass.
“The courts, it seems to me, are increasingly less sympathetic to First Amendment claims by journalists who are seeking to protect their sources, protect the confidentiality or the process that they use in gathering information,” said Jerding, who is now the editorial director for the First Amendment Center in Tennessee.
John Sturm, president and chief executive officer of the Newspaper Association of America, said that newspapers and press organizations are coordinating a national lobbying campaign to garner support for the bill.
Sturm noted that, unlike numerous previous attempts to pass similar federal bills from the early 1970s through the early 1980s, the situation is “much different now.”
“Thirty-one states and the District of Columbia already have these kinds of laws,” Sturm said. “So we’re not talking about anything radical here and it’s time for the federal law to be brought up to date.”
State shield laws can protect journalists from subpoenas issued by state and local government agencies and officials.
The National Newspaper Association will be lobbying on behalf of the proposal on Capitol Hill, according to Tonda Rush, the organization’s public policy director.
“Our society extends privileges against testimony to a great number of people because it believes that allowing subpoenas to invade confidential relationships is bad for those relationships–which our country has traditionally believed are important,” Rush said. “Reporters, likewise, need to have some freedom to protect the relationships involved in newsgathering if our society is to benefit from their efforts.”
Rush added that she believes the legislation is vitally important to the public.
“We believe that the public is gradually losing something it will sorely miss–and that is the ability of the press to gather information from people whose lives and livelihoods may be at risk if they are identified,” Rush said. “If there isn’t some sensible legal protection established soon, the public will be the loser.”
David Kidwell is a Miami Herald investigative reporter who was subpoenaed in 1996 by Florida state prosecutors. Prosecutors ordered him to testify about an interview he conducted in 1994 with a murder suspect on trial. Kidwell was sentenced to 70 days in jail for refusing to testify, but was released by a federal judge after two weeks, after his case appeared in national headlines.
Kidwell said the public needs to know that journalists’ jobs are to police the government and keep it “honest.”
“The only tool [journalists] have is our word, our promise, and now it appears that the government, in some cases, is trying to take that away,” Kidwell said. “What I learned from my experience is that promises transcend the law, and [journalists] cannot earn respect for these principles by compromising on them. A watchdog free press is the only thing that stands between [the public] and a loss of democracy.”
No action has yet been taken on the bill other than its introduction in the House and Senate. Hearings, as well as votes in the House Judiciary Committee, are expected to be held in the near future.
–By Britt Hulit
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