Editor's note: Broadcasting & Cable magazine reported Nov. 19 that the shield bill had failed to be put to a vote in the Senate Judiciary Committee. Sen. Patrick Leahy, committee chairman, recessed a hearing amid numerous amendment proposed by Republicans.
WASHINGTON — The White House, key senators and news-media representatives
have reached a compromise on legislation to protect reporters from being forced
to disclose their confidential sources in federal court.
Senate supporters of the so-called media-shield bill said today that the deal
gives the government authority to override those rights in certain
national-security cases.
Sen. Charles Schumer, a leading Democrat, said the agreement "strikes the
right balance between national-security concerns and the public's right to
know." He said it would preserve a strong defense for reporters trying to
protect sources while making sure the government can do its job of protecting
citizens.
The Senate Judiciary Committee could take up the altered legislation next
week.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of
the Press and a member of the media team involved in the negotiations, said that
the team was strongly recommending that the larger media coalition backing
reporter protections endorse the agreement.
"I think it is a compromise we can live with and it seems to be a compromise
the White House can live with. It's certainly better than the status quo,"
Dalglish said.
The House passed its version of a media-shield bill last March, but the
measure had stalled in the Senate and took a step back last month when the
administration unexpectedly sought to broaden government authority to compel
testimony. Dalglish said that approach was "quite honestly a slap in the
face."
Schumer met with Attorney General Eric Holder last month to try to find
common ground, Schumer's office said.
The original bill centered on the idea that a balancing test should be
applied under which a federal judge would weigh the public's right to know
versus national-security claims made by the government. The administration
wanted to eliminate that balancing test in many cases involving terrorism and
other security cases.
Under the compromise, the balancing test would be eliminated in
classified-leak cases where the government can show that disclosure of a
source's identity is necessary to prevent or mitigate an act of terrorism or
substantial harm to national security. But the government would also have to
provide specific facts: It could not make a national security claim and then
withhold most of the details.
The balancing test would be used in cases not involving classified leaks, but
in criminal cases the burden would be on the journalist to show clear and
convincing evidence that guarding the anonymity of sources was in the public
interest.
In non-criminal cases the government would bear the burden in proving that
compelling the divulging of a confidential source outweighs the public interest
in newsgathering.
"The negotiated compromise creates a fair standard to protect the public
interest, journalists, the news media, bloggers, prosecutors and litigants,"
said Sen. Arlen Specter, D-Pa., a co-sponsor of the Free Flow of Information
Act.
The revised bill would also extend protections for freelance or citizen
journalists by defining a journalist by the nature of activity engaged in rather
than by the organization that employs the reporter.
Protections in the bill apply not only to information held directly by
reporters, but also to reporter information such as phone and e-mail records
held by third-party service providers.
White House spokesman Ben LaBolt said the Obama administration was the first
in history to support media-shield legislation and that the compromise was one
the White House, Senate sponsors Schumer and Specter and a broad-based media
coalition support. "We expect this proposal to move forward with bipartisan
support, and the president looks forward to signing it into law," LaBolt
said.
Media-shield legislation has been supported by more than 70 journalism
organizations including the Associated Press. It would apply only to federal
courts and leave intact state protections for journalists and their sources.
The American Society of News Editors praised the agreement: "While not
perfect, this is a huge stride forward from the administration's prior position
and provides statutory protection that far exceeds that which is currently
available to a reporter who is served with a subpoena in a federal proceeding,"
ASNE said in a statement.