Thu, Aug 16, 2007 page9

• Will Congress shield the media?

  The recent jailings of US journalists for refusing to name their sources has rocked the industry. But a federal bill could put an end to subpoena season

  • By Peter Huck / The Guardian, Los Angeles
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  It has been an anxious time for American journalists. In several high-profile cases, and many less known ones, reporters have been subpoenaed by federal judges, special prosecutors or civil litigants and threatened with jail when they refused to name their confidential sources.

  The most famous episode surrounded the outing of CIA agent Valerie Plame. Rather than disclose her source, New York Times reporter Judith Miller spent 85 days in jail. In another case, Josh Wolf, a freelancer, refused to surrender video outtakes (later posted on his blog) of an anti-G8 protest in San Francisco to a judge, spending 226 days in jail.

  "There's a record number of subpoenas out there," said Linda Foley, who heads the Newspaper Guild. "And while the Plame case was about national security, the Balco case [two reporters who faced jail for protecting a source in a steroid scandal] was about sports. It seems like open season."

  

  Protecting sources is a fundamental duty for journalists. Yet numerous cases, some ongoing, have shown that media confidence in the first amendment, which protects free speech, is misguided. US federal courts have repeatedly cited a 1972 Supreme Court ruling, Branzburg versus Hayes, that said there is ultimately no First Amendment privilege for reporters.

  Following this ruling, 32 states and the District of Columbia adopted shield laws to protect reporters. In some, privilege is absolute. In others it is conditional. Judicial interpretations that recognize the need for protection serve the same purpose in all the other states, except in Wyoming, the home state of Vice President Dick Cheney, whose adversarial relationship with the media echoes the dark dynamic between the Fourth Estate and former US president Richard Nixon.

  Nonetheless, reporters were blindsided when free-speech rights failed to stem contempt charges.

  "We all assumed the First Amendment protected news gathering in this way," said Kevin Goldberg, an attorney for the American Society of Newspaper Editors. "It's been a real shock to find out we were wrong."

  Indeed, US reporters might fare better in Britain. Both the Contempt of Court Act and European rights laws acknowledge the right to protect sources.

  "The European court of human rights' Article 10 has been a bulwark of freedom of expression," said Dan Tench, a partner at Olswang law firm in London. "It's conferred a significantly greater protection than domestic courts would have done."

  While US journalists have "considerably more latitude" in libel or defamation issues, Tench believes the Judith Miller case simply would not arise in the UK.

  "She would clearly be protected and would not have to disclose her source. She certainly wouldn't be thrown in jail. That prospect would appal the judiciary and indeed the British government," he said.

  Certainly, the Bush administration's animus towards the media, most publicly in the Plame case, has been sobering for those in the industry; although journalists have also been subpoenaed in civil lawsuits brought against the government, such as those of Wen Ho Lee (李文和), accused of stealing secrets involving the US nuclear arsenal, and Steven Hatfill, identified as "a person of interest" by the government in the 2001 anthrax attacks.

  "It certainly has had a chilling effect," Foley said.

  This is hardly in the public interest. While big media have deep pockets for legal fights, smaller players, fighting to survive as new media roils the industry, may ignore contentious stories rather than risk litigation and jail.

  But relief may be on the way. This month, the House of Representatives judiciary committee approved a bipartisan bill. The Senate is examining an identical bill. Even if a bill fails to clear Congress, or is vetoed by the White House -- a likely development -- it is a significant step.

  "It's the first time a federal shield law proposal has received approval from any body of Congress," Goldberg said.

  "Congress understands it might be good to have a standard that all prosecutors, civil litigants, and reporters' sources could understand and live by," said Paul Boyle, head of the Newspaper Association of America.

  So who qualifies as a journalist in the era of bloggers and citizens who sell pictures taken with mobile phones? The proposed "free flow of information act 2007" embraces those who, for "financial gain or livelihood," engage in "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national or international events, or other matters of public interest for dissemination to the public."

  Many have problems with the financial definition.

  "It's no longer a bill to protect the public's right to know," said Wolf, who fears it may exclude freelancers who supplement their income elsewhere. "It becomes a law to protect the journalist's ability to conduct business."

  While Goldberg worries about the rights of unpaid student reporters, he believes it is "unquestionable" that the bill covers "people who are engaged in full-time journalism on the Internet."

  Nonetheless, said Marv Johnson, the American Civil Liberties Union's legislative counsel, some House committee members "did not want bloggers to have coverage."

  Back in the UK, Tench suggests journalists might be defined as those regulated by groups such as the Press Complaints Commission, a stipulation that would be anathema in the US.

  This may be academic if the White House vetoes any shield law, a strong possibility. The administration would most likely use its national security mantra, which has often quelled Congress.

  The committee, which has allayed fears about protecting trade secrets, personal and medical data, and threats that might cause death or harm, cites "significant and specified harm" as a litmus test. Critics want more specific language. But clashes between media and government on national security may be decided in camera.

  Ironically, excessive government secrecy has fuelled the push for a shield law.

  "The more secrets you have, the more leaks you have," said Lucy Dalgleish, executive director of the Reporters Committee for the Freedom of the Press. "And one thing you need to do when you have a secretive administration is protect the people who come forward with information they feel the public really needs."

  Will a US shield law emerge? Dalgleish is "quietly optimistic." Others believe Congress has set a benchmark for future efforts.

  Meanwhile, newspaper editorials are making the case for their readers. In an age when journalists are no longer accorded the respect they enjoyed in the Nixon era, when Watergate reporters Carl Bernstein and Bob Woodward became heroes, it is vital the media make their case.

  "We have to stand up for the principle that reporters can protect their sources," said Foley, whose union has made a rare alliance with publishers in backing a federal shield law. "If you can't have confidential sources, you won't be able to do investigative journalism."
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