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House panel backs bill to allow reporters to keep sources secret

By The Associated Press
08.02.07

WASHINGTON — Legislation to shield reporters from being forced by prosecutors to reveal their sources was approved yesterday by the House Judiciary Committee.

News-media companies and journalism groups have argued that the measure is needed to keep the public informed about government corruption, but the Bush administration and other opponents say it could harm national security.

Under the measure, H.R. 2102, federal courts would join 32 states and the District of Columbia in protecting reporters from being forced to reveal confidential sources, except in certain cases.

The voice vote sent the bill, sponsored by Reps. Rick Boucher, D-Va., and Mike Pence, R-Ind., to the House floor.

Supporters say whistle-blowers will be less likely to provide information about government and other wrongdoing if reporters are required to give up their sources.

The bill "helps restore the independence of the press so that it can perform its essential duty of getting information out to the public," said Judiciary Committee Chairman John Conyers, D-Mich.

Opponents say the bill leaves open too many possibilities in which reporters might be exempted from having to provide information that might help the government hunt down terrorists or for use in libel cases.

"We should not create a protection so broad that those who would destroy people's reputations, businesses and privacy can hide behind it," said Rep. Lamar Smith of Texas, the committee's senior Republican.

The Justice Department opposes the bill.

"History has demonstrated that the protections already in place, including the department's own rigorous internal review of media-subpoena requests, are sufficient," Assistant Attorney General Rachel Brand told the House Judiciary Committee in June.

Under the bill, reporters could still be compelled to provide information:

  • If all "reasonable" alternative sources have been exhausted.
  • In criminal investigations, if officials seeking the information have reasonable grounds to believe a crime has occurred and the information sought is critical to the case.
  • In civil cases, if the information is critical to the "successful completion of the case."
  • If the information is necessary to prevent a terrorist act, prevent imminent death or "significant bodily harm," or identify a person who has exposed a trade secret or certain health information.

An exception to the privilege would apply only if a court determines that the public interest in disclosing the information outweighs the public interest in news gathering and dissemination, Boucher said.

Pressed by law enforcement officials and the private sector, Boucher made several changes to the bill before the committee considered it yesterday.

One change deleted a provision that would require an investigator to prove that the information is needed to prevent "imminent and actual harm" to national security. Instead, the bill now requires a showing of "significant specified harm" to national security, even if the harm is not imminent.

In another change approved by the committee, the bill now excludes foreign powers or their agents so that, for example, a government-controlled newspaper of another country is not protected under the act.

The bill "establishes important ground rules that balance the public interest in both the free flow of information and the fair administration of justice," said Paul Boyle, senior vice president of public policy at the Newspaper Association of America.

"By enacting a federal shield law, the Congress can ensure that all parties — journalists, sources, prosecutors, civil litigants and courts alike — can rely on consistent and well-articulated standards of procedure," Boyle said.

Some media advocates wanted still more changes, including broadening the definition of "journalist."

The House bill would apply the shield to news gatherers who derive "financial gain or livelihood" from their activities. The definition would include freelancers and advertising-supported bloggers, according to the Society of Professional Journalists.

"While it's important to distinguish responsible journalists from casual bloggers, the more narrow the language defining who is a journalist, the less impact the bill will have," said Christine Tatum, SPJ's national president and an assistant features editor at The Denver Post. "I encourage Mr. Pence and Mr. Boucher to define 'journalist' as broadly as possible."

The legislation is in response to former New York Times reporter Judith Miller's jailing for 85 days in 2005 for refusing to identify which Bush administration officials had talked with her about CIA agent Valerie Plame.

Miller ultimately testified that she had conversations about Plame with I. Lewis "Scooter" Libby, then chief of staff for Vice President Dick Cheney. Miller said Libby had released her from her pledge not identify him.

Libby was convicted of lying to the grant jury and obstruction of justice in an investigation of who leaked Plame's identity to reporters. President Bush commuted Libby's sentence last month.


Update
Senate panel moves ahead with bill to create media shield law
Letters from two executive-branch officials warn that making it harder for government to track down leaks could endanger national security. 09.28.07

Previous
White House again voices opposition to shield law for reporters
Justice Department official says bill's broad definition of who is a journalist includes bloggers, thus would pose significant problems for federal investigators. 06.15.07

Related

At ASNE, Specter advocates passage of shield law

Pennsylvania senator says journalists do more to shed light on corruption and mismanagement 'than all congressional oversight combined,' but fear of being jailed can hinder their work. 03.28.07

Bush commutes Libby’s 'excessive' jail sentence
President issues order five hours after federal appeals panel rules that former vice presidential aide could not delay his prison term. 07.03.07

Senate unanimously approves FOIA update
Bill, which would extend federal open-government requirements to private contractors and increase penalties for agencies that don't comply, now heads to House. 08.06.07

Protecting reporters' privilege?
By Alicia Armbruster Study finds current version of bill proposing federal shield law would solve key concerns among journalists trying to protect confidential sources. 04.12.07

Internet expanding scope, meaning of ‘free press’
By Gene Policinski Bloggers, citizen journalists raise legal issues about who constitutes 'the press' — including whom a proposed federal shield law would protect from revealing confidential sources. 06.03.07

Shield laws


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