WASHINGTON — As federal judges order more reporters to disclose their confidential sources, news organizations are pinning their hopes on congressional passage of a news-media shield bill the Bush administration opposes as a threat to national security.
The legislation being considered in the Senate offers only modest shelter for reporters wanting to protect the identity of confidential sources. In many
cases, it would leave the fate of journalists — and their sources — to the
discretion of judges who increasingly have been willing to jail or fine them.
Out of nine high-profile cases since 2003 where journalists were ordered to
reveal information, four might have turned out differently had the proposal
awaiting Senate action (S. 2035) been law.
For them and dozens of other reporters subpoenaed for confidential
information or the names of those providing that information, judges generally
would have to weigh the "public interest" of the news reports; that is a legal
analysis many judges already do. They would retain the power to jail reporters
who refused to name sources who leak information involving national
If the Senate bill were law, former New York Times reporter Judith Miller still may have gone to jail for 85 days for refusing to identify the government
official who breached national-security rules by leaking a CIA officer's name.
But two San Francisco reporters might not have faced the prospect of 18-month
jail terms for refusing to name the source for leaks of secret grand jury
testimony that shed light on a steroid scandal in professional baseball.
Former USA Today reporter Toni Locy might benefit if a judge assigns enough
"public interest" value to her reports about the government's investigation into
the 2001 anthrax attacks. For now, she faces fines of up to $5,000 a day
(recently suspended while a court ponders the matter) unless she discloses her
Justice Department sources. This ruling, if embraced by other courts, could
confront reporters with the prospect of bankruptcy for protecting sources.
Supporters of the Senate bill and a House-passed version (H.R. 2102) cite
press reports about secret CIA prisons, warrantless wiretaps of U.S. citizens
and top Nixon administration officials' crimes that came to light through
"Reporters, editors, publishers and their lawyers cannot with assurance
articulate the rules governing confidentiality because legal standards are
hopelessly muddled," said Ted Olson, a former solicitor general in the Bush
administration who is backing a shield law to create uniformity in the
"Fearing the consequences of exposure, sources withdraw," Olson said.
The administration opposes both versions of the measure, which it says would
make it nearly impossible to enforce laws against unauthorized releases of
The government would have to provide evidence of "significant and articulable
harm" to national security — rather than a general claim — in addition to making
judges weigh the public interest in protecting confidential sources.
Attorney General Michael Mukasey has said the Senate bill defines a
journalist too broadly.
News organizations win about 60% of state and federal cases involving
reporters' privilege each year, with journalists losing more often when a grand
jury is involved, according to a 2007 analysis by press lawyer James
Goodale, who represented The New York Times as its general counsel in the Pentagon Papers case, is the architect of the news media's largely successful
legal strategy since Branzburg v. Hayes, a 5-4 Supreme Court decision in 1972 against a reporter
ordered to testify before a grand jury. The fifth vote in that case, by Justice
Lewis Powell, left the door open for state and lower courts to allow a
reporters' privilege by considering First Amendment interests of publicizing
Since then, 32 states and the District of Columbia have shield laws. Courts
in another 14 states have recognized a reporter’s privilege through common law,
while two other states, Utah and New Mexico, have shields that exist under court
rules. Hawaii and Wyoming have no shield.
Federal judges began offering leeway to reporters as well in civil litigation
and criminal trials, so long as the information sought was not critical to the
government's or plaintiff's case and was available elsewhere. At times, they
protected journalists from having to disclose unpublished, nonconfidential
"By a stroke of genius, media attorneys were able to turn what was actually a
loss for the press in 1972 into a qualified privilege for 30-plus years," said
University of Arizona law professor RonNell Andersen Jones. "There is now an
unsettled feeling among members of the press about whether this carefully
constructed house of cards is going to be blown down."
Jones has come up with figures in a soon-to-be-released survey that indicate a rise in federal subpoenas following highly publicized news-media losses in
recent years. Those defeats, she says, have emboldened more lawyers to subpoena
Her survey, which got responses from 761 news organization, found 21 federal
subpoenas seeking names of confidential sources in 2006 and an additional 13
seeking material other than a source's name that was received on condition of
Those numbers are substantially higher than the 19 subpoenas since 1992 cited
by the Justice Department when arguing that a federal shield bills is
unnecessary. That count includes only subpoenas by department prosecutors who
want reporters to disclose sources' identities to grand juries. The tally does
not include civil lawsuits, cases involving special prosecutors or trial
subpoenas by federal prosecutors seeking confirmation of material already
published in news stories.
Some experts say the tipping point prompting some courts to rethink their
prior inclinations to favor reporters was a ruling in 2003 by Richard Posner, a
federal appeals court judge in Chicago. Posner said judges were wrong to give
more leeway when a case did not involve grand juries and when reporters were
seeking to protect nonconfidential material.
"Subpoenas should be reserved for the very rare case," said Patrick
Fitzgerald, the special prosecutor who compelled scores of reporters to testify
in the CIA leak case. "But there is national-security information going out the
door on a pretty staggering basis. You can't say there's not a lot of serious
information being compromised."
Fitzgerald, a federal prosecutor who subpoenaed the telephone records of Times reporters Miller and Philip Shenon in a separate case, argues that a
shield law is unneeded and potentially dangerous. He says federal prosecutors already are already bound by Justice Department guidelines to issue subpoenas
only in compelling situations.
Dismissing notions that media subpoenas would dampen investigative reporting,
Fitzgerald said, "Journalists have been saying the sky is falling since 1972 ...
and that suddenly the stories will dry up. But I'm not seeing big blank spaces
on the front page."
News organizations and press-advocacy groups are not so sure.
They cite Locy's case in which she is refusing to identify a dozen Justice
Department sources to lawyers for Steven Hatfill. The former Army scientist is
suing the government for invasion of privacy after he came under scrutiny in the
anthrax attacks. Locy says she cannot remember if her dozen sources specifically
talked about Hatfill.
"If journalists can't find protection in the courts, then legislation is the
only answer," said Nathan Siegel, a lawyer who represents the AP and other news
The shield legislation is supported by several news and press organizations,
including the AP, the Newspaper Association of America, the American Society of
Newspaper Editors, The New York Times Co. and The Washington Post.