House OKs bill to protect reporters in U.S. courts by wide margin
Zachary Coile, Washington Bureau
San Francisco Chronicle
October 17, 2007
Washington - The House overwhelmingly approved a media shield bill Tuesday that would protect reporters from having to reveal their confidential sources in federal courts, despite warnings from the White House that it could lead to more leaks of classified information.
The measure passed by a lopsided vote, 398-21, as lawmakers complained that journalists are under siege from federal prosecutors and civil litigants seeking to unmask their sources. In the end, 176 Republicans joined virtually all Democrats to support the bill.
In an unusual alliance, even top Republican leaders like House Minority Leader John Boehner, R-Ohio, broke with the Bush administration to join the majority to pass a bill that supporters said would bolster the freedom of the press.
"In the past few years, there have been too many instances where the pendulum has swung against the free flow of information and in favor of the government," House Minority Whip Roy Blunt, R-Mo., said on the House floor. "I was troubled by the instances I've seen where reporters have been jailed or threatened with jail for simply protecting their sources."
The White House issued a statement Tuesday afternoon that threatened a veto by President Bush, saying the legislation is too broad and could harm national security.
"It is likely that the legislation will encourage more leaks of classified information by giving leakers such a formidable shield behind which they can hide," the statement read.
House sponsors of the bill said the stronger-than-expected bipartisan vote was a response to recent high-profile cases in which reporters were jailed or threatened with jail time to name their sources to prosecutors. More than 40 reporters have been subpoenaed to testify or turn over their notes in criminal and civil cases in the last three years.
New York Times reporter Judith Miller spent 85 days in jail in 2005 for refusing to identify her sources in the CIA leak case. Rhode Island TV reporter Jim Taricani spent four months under house arrest for defying a court order requiring him to reveal who gave him an FBI tape showing a public official taking a bribe.
Lawmakers also cited the case of two Chronicle reporters, Lance Williams and Mark Fainaru-Wada, who were threatened with up to 18 months in prison for refusing to divulge their sources for federal grand jury testimony in which top professional athletes admitted using illegal steroids. The two journalists narrowly avoided jail time when their source pleaded guilty to leaking grand jury documents earlier this year.
"Compelling reporters to testify and, in particular, compelling them to reveal the identity of confidential sources is a detriment to the public interest," said Rep. Mike Pence, R-Ind., one of the bill's chief sponsors. "Without the promise of confidentiality, many important conduits of information about our government will be shut down."
The legislation would offer journalists a qualified privilege that would prevent them from testifying or turning over their notes in most cases. But reporters would still be forced to testify under limited circumstances: if the information is necessary to prevent a terrorist attack or "significant and specified harm" to national security; if it could prevent "imminent death or significant bodily harm"; or if it's needed to identify a person who has leaked significant trade secrets or certain financial or medical information.
However, prosecutors, criminal defendants or civil litigants would have to prove they had exhausted all other means of getting the information before demanding that a journalist testify or turn over notes.
The bill also would require telephone companies and Internet providers to protect information that could identify a reporter's confidential sources.
The legislation would ask federal judges to use a balancing test to determine whether the public interest in disclosing the information "outweighs the public interest in gathering or disseminating news and information."
House Speaker Nancy Pelosi, D-San Francisco, used her clout to push for a vote this fall. She told a group of Associated Press editors this month she would move the bill quickly, and she appeared on the House floor to support its passage.
"Nearly all states have some form of press shield protecting the confidentiality of journalists' sources," Pelosi said. "However, that protection is lacking at the federal level and in the federal courts.
Thirty-three states and the District of Columbia have media shield laws on the books, and all the remaining states except Wyoming follow court rulings that offer some level of protection for reporters' confidential sources. But federal law has been less clear since the Supreme Court ruled in 1972 that reporters do not have a privilege under the First Amendment to refuse to reveal their sources to grand juries.
Only 20 Republicans and one Democrat - Hawaii Rep. Neil Abercrombie - opposed the bill. Those lawmakers said they agree with the administration's view that the bill would tie the hands of federal prosecutors and lead to more leaks that could help America's enemies.
"No one should be above the law - not even the press," said Rep. Lamar Smith, R-Texas. "We must err on the side of caution and not support legislation that could make it harder to apprehend criminals and terrorists or deter their activities."
The Senate Judiciary Committee passed a similar federal shield bill earlier this month, but plans to bring it to the Senate floor have been slowed because of strong opposition from a few Republican senators. The bill's sponsors fear that one or two senators may put a hold on the bill to block its progress.
But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, warned, "If one senator were to hold the whole thing up, I think you'd see a lot of attention focused on that senator."
Media groups are backing the House version because it's a broader bill. The Senate bill only deals with confidential sources, while the House bill also would protect journalists from other subpoenas seeking information not related to their sources. "It greatly reduces the number of ... little fishing expedition subpoenas," Dalglish said.
Some bloggers have expressed concern that the bill mainly protects journalists in the mainstream media. Lawmakers added language that says those covered by the act must regularly report the news and earn a substantial portion of their livelihood from journalism. It's not clear whether it would cover San Francisco blogger Josh Wolf, who spent 226 days in jail for refusing to turn over video of a protest by anarchists - even though he did benefit financially by selling portions of his tape to a local TV station.
Pence said the law's new definition "will exclude casual bloggers - but not all bloggers - criminal offenders or the media wings of terrorist groups."
Supporters of the bill include the American Society of Newspaper Editors, the National Association of Broadcasters and more than 50 media outlets, including the Hearst Corp., parent company of The Chronicle.