WASHINGTON — The House of Representatives yesterday strongly backed the right of reporters to protect the confidentiality of sources in most federal court cases, saying that right was crucial to a free and effective press. The White House, warning that the media-shield bill would encourage leaks of classified information, threatened a veto.
Under legislation that passed 398-21, reporters could still be compelled to disclose information on sources if that information was needed to prevent acts of terrorism or harm to the national security.
That was not enough for the White House, which said the privileges for reporters "could severely frustrate — and in some cases completely eviscerate — the ability to investigate acts of terrorism or threats to national security."
Advocates of press freedom have pushed the issue this year in the wake of several high-profile cases, including subpoenas for reporters to testify in a probe into the leak of a CIA operative's identity.
Supporters pointed to press reports on Abu Ghraib, clandestine CIA prisons and shoddy conditions at Walter Reed Army Medical Center veterans hospital as examples where source confidentiality was crucial.
"Freedom of the press is fundamental to our democracy and it is fundamental to our security," House Speaker Nancy Pelosi said.
“The federal government's policies and actions should protect and preserve the press's ability to speak truth to power, and this legislation does so with appropriate national security safeguards, striking a careful balance between liberty and security,” the California Democrat said.
More than 50 news outlets, including the Associated Press, support the bill, which faces an uncertain future in the Senate. A similar bill, S. 2035, sponsored by Pennsylvania Republican Sen. Arlen Specter, cleared the Senate Judiciary Committee earlier this month, but it is uncertain if the full Senate will take it up in the final legislative weeks of this year.
Indiana Republican Rep. Mike Pence, a conservative who co-sponsored H.R. 2102 with Virginia Democratic Rep. Rick Boucher, said he promoted the bill because "I believe the only check on government power in real time is a free and independent press." The act, he said, "is not about protecting reporters, it's about protecting the public's right to know."
Pence also said: “It is arguable in fact that the Free Flow of Information Act is the first legislation regarding the freedom of the press since the words 'Congress shall make no law ... abridging the freedom of speech, or of the press' were added to the Constitution. As such, and I say humbly, passage of this legislation today would be both momentous and historic.”
The Justice Department and the Office of the Director of National Intelligence are on record as opposing the legislation, saying it would make it nearly impossible to enforce federal laws pertaining to the unauthorized release of classified information. Justice also said the bill's definition of who is a journalist was too broad.
But backers said the bill was crafted to strike a balance between the need to protect a reporter's sources and the need for courts to see critical pieces of information.
Exceptions to the reporter shield are allowed to prevent an act of terrorism, apprehend the source of a past terrorist attack or stop harm to national security. Disclosures can also be ordered to prevent imminent death or significant bodily harm, or to identify a person who has revealed trade secrets or information involving personal medical or financial records.
Just before passage, the House accepted language by Texas Republican Rep. Lamar Smith, the lead opponent of the bill, allowing judges to consider the public interest in forcing disclosure in all cases involving leaks that could be harmful to national security, not just criminal cases.
“The First Amendment of the Constitution guarantees the press their freedom to report, and for 200 years in this nation the press has flourished,” Smith said. “Information has flowed freely. And that is why I believe this bill is simply a solution in search of a real problem."
The final bill consists of "a lot of compromising," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "This has required enormous amounts of time and money and effort" by news and nonprofit groups. Pushing a legislative agenda, she said, "does not come natural to us."
The impetus, she said, was more than 40 cases in the past three years where reporters have been asked to identify sources or testify in federal criminal and civil cases.
"America is not a country where journalists should be jailed," said Clint Brewer, national president of the Society of Professional Journalists. "This bill will allow the working press and those acting as journalists to serve society without fear of reprisal or intrusion from overzealous prosecutors."
Former New York Times reporter Judith Miller was jailed for 85 days in 2005 for refusing to identify which Bush administration officials had talked with her about CIA agent Valerie Plame.
The Justice Department, in questioning the need for the legislation, said it had approved the issuances of subpoenas to reporters seeking confidential source information in only 19 cases between 1992 and 2006.
The Supreme Court in 1972 ruled in Branzburg v. Hayes that journalist-source relationships were not protected under the Constitution, and currently reporters have no privileges to refuse to appear and testify in federal legal proceedings. The situation is different in state courts, with 33 states having media shield statutes and 16 others with judicial precedents protecting reporters.
House Judiciary Committee Chairman John Conyers, D-Mich., said, “In recent years the press has been under assault, as reporters are increasingly being imprisoned for obstruction of justice and other charges... . Today we are here in an attempt to reclaim one of the most fundamental principles enshrined by the Founding Fathers. Freedom of the press is the cornerstone of our democracy.