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 was passed on a broad bipartisan vote, 398-21, with 176
Republicans joining virtually all Democrats to support the bill.
In an unusual alliance, senior Republican like House Minority Whip Roy
Blunt, R-Mo., broke with the Bush administration to join the majority in
passing 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,” Blunt 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 saying President Bush’s advisers
would recommend he veto the legislation unless it’s changed, claiming the
bill 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 lopsided 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 recent 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 San Francisco 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 exhausted all other means of getting the information before
demanding that a journalist testify or turn over their notes.
The bill also requires 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.”
The Justice Department still strongly opposes the measure,
saying it would make it difficult to prosecute cases where government
officials or others were responsible for unauthorized leaks of classified
information.
“This would seriously impede our ability to investigate and prosecute
national security matters,” said Peter Carr, a Justice Department spokesman.
House Speaker Nancy Pelosi, D-Calif., used her clout to push for a vote
this fall. She told a group of AP 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 voted against the bill and one Democrat – Hawaii Rep.
Neil Abercrombie – opposed it.Those lawmakers said they agreed 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.”
Some
bloggers have expressed concern that the bill mainly protects journalists
from 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 an anti-G8 anarchy protest-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, Society of Professional Journalists,
the National Association of Broadcasters and more than 50 media outlets,
including the Hearst Corporation, parent company of the San Francisco
Chronicle.
