Proposed US Shield Law For Press Gets OK Reviews

Proposed U.S. Shield Law for Reporters Gets Favorable Reviews

Opponents say law could hurt United States' anti-terrorism efforts: The U.S. Congress is considering what would be the nation's first federal "shield" law to protect journalists from being forced to reveal confidential news sources.

Theodore Olson, the U.S. solicitor general from 2001 to 2004, told USINFO he favors the bill (H.R. 2102) overwhelmingly approved October 16 by the U.S. House of Representatives because it makes "appropriate compromises" with respect to "different interests" in combining the public's right to know while protecting national security. The solicitor general, an official in the U.S. Justice Department, represents the government when cases are brought to the Supreme Court.

The Senate Judiciary Committee passed a similar bill (S. 1267) October 4 that is now pending before the full Senate. If the bill emerges from a House-Senate conference committee, it will go to President Bush for his consideration.

The legislation before Congress "could and should" be enacted into law, said Olson, now with the Washington law firm of Gibson Dunn and Crutcher LLP.

Olson and other advocates argue that the bill, the Free Flow of Information Act of 2007, still would force reporters to disclose information if a court decides that it is needed to prevent acts of terrorism, or if conditions present a threat to national security.

Olson served as defense attorney in highly publicized cases about reporters being allowed to protect sources.

The White House opposes the shield law legislation. It says the bill would grant privileges to reporters that "could severely frustrate -- and in some cases completely eviscerate -- the ability to investigate acts of terrorism or threats to national security." White House press secretary Dana Perino told reporters October 16 that the "protections that are in place currently for journalists" are "sufficient."

But Olson said passing a federal shield law "makes a lot of sense" because so many U.S. states have enacted comparable legislation. He predicts the federal measure will pass Congress because "most people would say we need to protect journalists, up to a point. What journalists are doing essentially ... is in the interests" of the American public.

Olson wrote in an October 4 Washington Post op-ed article that journalists reporting on high-profile controversies "cannot function effectively without offering some measure of confidentiality to their sources."

Yet, he added, "it has become almost routine ... to round up reporters, haul them before a court and threaten them with fines and jail sentences unless they reveal their sources."

Patrick Fitzgerald, the U.S. attorney for the Northern District of Illinois, said in an opposing Post op-ed article the same day that the shield law would have the "unintended but profound effect of handcuffing investigations of leaks" of classified information. Fitzgerald said the bill has other "serious consequences," including defining journalism so broadly that "it includes not just newspapers and bloggers but also criminal organizations that disseminate information widely."

Reporters Group Argues For Shield Law

Lucy Daglish, executive director of the Virginia-based Reporters Committee for Freedom of the Press, told USINFO that 33 U.S. states and the District of Columbia have enacted shield laws, while another 16 states have "varying degrees" of "common law" where such measures are created or refined by judges.

Maryland was the first U.S. state to adopt shield protections for reporters, while Wyoming is the only state without such a law, Daglish said.

Daglish said many countries worldwide have developed laws regarding reporters' privileges. Sweden imposes an even higher legal standard, she said, in which a reporter can be charged with a crime for revealing confidential sources. Daglish defined a shield law as giving a "privilege to a reporter to avoid testifying when compelled to testify by a government agency or court."

She said no U.S. federal shield law ever has been enacted "because for many years, we just assumed" that the First Amendment to the U.S. Constitution provided protection for journalists. But a 1972 Supreme Court ruling said reporters in criminal cases lacked those First Amendment protections, Daglish indicated. The court ruled, Daglish said, that federal protections for journalists would need to be approved by Congress. Since then, numerous attempts to pass a federal shield law have ended in failure. (See related article.)

Daglish said that in the last three to four years, U.S. courts have been interpreting reporters' privileges "much more drastically." This has caused a coalition of journalist advocacy groups and news organizations to organize for a federal law against "the number of subpoenas that have been served on the media ... all across the country," said Daglish.

She said that internationally "it's now much more common to provide protection" for journalists than it is in the United States, even though the notion originated in America that reporters should be allowed to protect confidential sources.

"But our laws have not kept up with that ethical maxim," Daglish said.

The full text of articles by Olson and Fitzgerald are available on the Washington Post Web site.

ENDS

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