Congress is considering a bill allowing reporters to protect the confidentiality of their sources even if ordered to reveal them under subpoena. The proposal does not protect bloggers, freelancers, and citizen journalists.
H.R. 985, which at press time had nearly 50 cosponsors from both parties, is identical to a bill that passed the House during the 110th Congress but was never considered in the Senate.
Rep. Rick Boucher (D-VA), author of the current bill, notes 36 states and the District of Columbia already have statutes protecting reporters, but the laws use varying standards, most of which require journalists to work for a newspaper or a radio or television station.
Little Current Protection
David Greene, executive director and staff counsel for the Washington, DC-based First Amendment Project, says the proposed law is necessary—but must include online journalists.
“Under the current state of the law, a news gatherer has almost no protection against subpoenas issued by a federal grand jury,” Greene said. “The fact that this rather large hole exists disables news gatherers from being able to assure sources of confidentiality with any level of confidence.
“Even if the State courts offer strong protections, and even if federal courts have found that strong protection exists in most other federal civil and criminal proceedings, the grand jury exception hinders all newsgathering substantially,” Greene said.
“My personal belief is that it is the conduct of newsgathering, not the status of someone as one type of journalist or another, that needs to be protected,” Greene added. “The specific medium of communication should not be determinative. I think all of those who gather news are deserving of the protection of a shield law.”
Journalists Snared in Past
Advocates of a “shield law” point to the case of Steven Hatfill, a former Army scientist the federal government identified as a “person of interest” in the 2001 anthrax attacks through the mail. Hatfield sued the federal government for violating his privacy by exposing his identity to reporters.
USA Today reporter Toni Locy was drawn into the lawsuit after she was asked to reveal her sources for her stories on Hatfill. When she refused, a federal judge placed her in contempt and ordered her to pay a fine of $5,000 a day unless she identified officials who discussed Hatfill with her. A federal appeals court later threw out the contempt order.
Locy, now a professor of legal reporting at Washington & Lee University in Lexington, Virginia, said she was long opposed to shield laws. But not now.
“I thought that as long as I was fair, accurate, and skeptical of government, I would not need any extra protection,” Locy said. “I thought the First Amendment was enough.
“Journalism is in danger of being destroyed out of fear,” Locy added. “A free press is a right that makes the United States unique in the world. I cannot believe that Congress or any state legislature wants civil lawsuits to be used as weapons of mass destruction against our free press. If the courts, Congress, and state legislatures don’t take action, we may lose what is precious to us: Our freedom to hold the government accountable.”
Urging Federal Action
Anthony Fargo, an associate professor at the Indiana University School of Journalism, also sees the need for the shield law.
“The shield law would help to bring some stability and consistency regarding the protection of journalist’s sources. Right now whether a journalist can promise confidentiality to a source depends on which appellate circuit he or she lives in,” Fargo said. “The Supreme Court has kept out of the controversy since Branzburg v. Hayes in 1972, which is probably a strong signal that the court expects the legislative branch to solve the problem.
“On some beats, confidentiality is a necessity, particularly in regard to reporting on national security, politics, and crime,” Fargo added. “I think the problem for the press is, again, the inconsistency problem and the fact that it leaves both reporters and sources confused about their rights and expectations.
“I suspect that we’ve already lost, and will continue to lose, some important stories because sources aren’t sure they should come forward and talk to the press in the current climate,” Fargo said.
Kristopher M. Jones, director of media relations for the National Association of Broadcasters, said his organization supports the shield law—and making sure it extends to online journalists.
“Forcing the disclosure of confidential sources has a chilling effect on journalism, and the flow of information to the general public. Without a federal standard, whistleblowers are discouraged from coming forward with evidence of waste, fraud, and abuse in government and the private sector,” Jones said.
Fargo added while “there is still a difference between what professional journalists do and what most bloggers do,” that line is being blurred all the time. The Seattle Post-Intelligencer, for instance, stopped publishing a printed newspaper in March, but its staff of reporters will write stories to be posted online.
“How long the difference between ‘journalists’ and bloggers will hold is anyone’s guess,” Fargo said. “I think that’s one reason why the proposed federal shield law leaves the question of who is covered by the law a bit open-ended.”
Tabassum Rahmani ([email protected]) writes from Dublin, California.