Federal Shield Law Reintroduced In House
By Donald R. Winslow
© 2009 News Photographer magazine
WASHINGTON, DC (February 11, 2009) – Today a federal shield law for journalists that has failed to pass in recent years was reintroduced in the House of Representatives, and if it becomes law the legislation would advance the public's right to know by setting federal standards for protecting journalists and the identities of their confidential sources.
The National Press Photographers Association is part of a broad media coalition that has been calling for Congress to pass a federal shield law for journalists since 2007. On its own, NPPA has been calling for a federal shield law since March 2005.
NPPA's leadership is again asking members to contact their Representatives and to voice their support for this measure. (See the bottom of story for more information.)
"NPPA commends the sponsors of the Free Flow of Information Act of 2009," NPPA's general legal counsel Mickey H. Osterreicher said today. "With the advent of a new and open Presidential administration, it is hoped that the reintroduction of this long overdue measure will finally provide the same protection for journalists in federal court as they have in almost every state court in the United States."
This year the shield law in the House, HR 985, is sponsored by Reps. Rick Boucher (D-VA), Mike Pence (R-IN), John Conyers (D-MI), and Bob Goodlatte (R-VA). A similar bill will be introduced soon in the Senate. The House measure today has 38 original co-sponsors.
Early introduction of the legislation in this year's session has encouraged coalition members that maybe this year the shield law will pass if the House takes swift action.
"Often the best source of information about public corruption or misdeeds in a large corporation or charity is a person on the inside of the organization who would like to bring the facts to public light, but that person has a lot to lose and to avoid punishment at the hands of superiors will only divulge the information to a reporter if promised confidentiality," Rep. Boucher said.
"If confidentiality cannot be assured, the public may never learn of the wrong doing and never have an opportunity to take corrective action," he added.
The media coalition that is supporting action to create a federal shield law says the legislation is in response to a disturbing trend. Since 2001, five journalists have been sentenced or served time in jail for refusing to reveal their confidential sources in federal court. Two reporters were sentenced to 18 months in prison and one reporter faced up to $5000 a day in fines. A 2006 study estimated that in that year alone, 67 federal subpoenas sought confidential material from reporters, with 41 of those subpoenas seeking the name of a confidential source.
David Ashenfelter, a Pulitzer Prize-winning Detroit Free Press reporter, is currently facing possible jail time and fines for refusing to disclose his confidential sources in response to a subpoena issued by a former U.S. attorney, who filed a civil lawsuit against the Justice Department after he was investigated for prosecutorial misconduct in a high-profile terrorism trial. Ashenfelter’s contempt hearing is scheduled for today.
Last year in early July more than 40 state attorneys general told the Senate's majority and minority leaders that they supported the Senate's version of a federal shield law for reporters. At that time the House had already passed their similar measure by a vote of 398-21 and the effort had bipartisan support.
By the end of July, the Senate measure was stalled by Republican Senators when a 51-43 vote failed to move the legislation forward. The bill needed at least 60 votes to proceed, and it got stuck when Senate Republican refused to debate the law until the body addressed a bill that provided more domestic oil and gas production.
When it failed in 2007, supporters hoped the effort would have a better chance after the presidential elections because while both the Senate and the House supported a federal shield law for reporters, the Bush administration said they opposed it and threatened to veto it.
Supporters of the Free Flow of Information Act of 2009 point out that the House bill provides journalists with a privilege that is qualified, not absolute. The proposed legislation establishes reasonable procedural rules for when a reporter can be compelled to testify, and when a reporter can receive legal protection. The legislation requires reporters to disclose their confidential sources to prevent or investigate acts of terrorism or other significant harm to national security, to furnish eyewitness observations of a crime, and to provide information needed to prevent death or significant bodily harm.
In 2005, NPPA called for a national shield law when New York Times reporter Judith Miller was sentenced to four months in jail for refusing to reveal her confidential sources.
The District of Columbia and 49 states have shield laws to protect journalists, but aggressive prosecutors have learned how to sometimes do an "end run" by bringing a case in federal, instead of state, courts.
One such example was online journalist and blogger Josh Wolf in 2007.
"Wolf, a freelance photographer in California, spent 226 days in prison for his refusal to turn over his raw video of an incident involving the San Francisco police. He would have normally been protected by California’s strong shield law until prosecutors did an end run around the state's protections by bringing the case in federal court where there was no such protection," Osterreicher said.
Wolf was jailed longer than any other journalist in American history. He was released in March 2007 after seven months after his lawyer reached an agreement with federal prosecutors. As part of that deal a federal judge ruled that Wolf would not have to testify before a grand jury if he produced video outtakes for in-camera review by the judge, and he would not have to identify people shown in his footage.
Journalists, editors, and press freedom organizations believe that courts who compel reporters to disclose confidential sources will will hamper the ability of journalists to report on matters of great public interest. The Watergate scandal, mistreatment of soldiers at Walter Reed Army Medical Center, the massive fraud at Enron, and other groundbreaking stories about government and corporate waste, fraud and abuse would have remained unknown both to the public and Congress without information from confidential sources. The media coalition supporting a federal shield law does not believe that imprisoning or bankrupting journalists who refuse to reveal confidential sources helps the government's efforts to promote democracy and freedom of the press around the world.
NPPA president Bob Carey and NPPA's Advocacy chair Alicia Calzada Wagner are encouraging NPPA members to contact their elected representatives and to voice their support for passage of a federal shield law this year.
Find out who your elected Representatives and Senators are here and write to them with your support.
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