Bush administration opposes shield law

Wednesday, July 20, 2005

WASHINGTON — The Bush administration today labeled as “bad public policy” legislation to protect reporters from being jailed when they refuse to reveal their sources.

Deputy Attorney General James Comey canceled his appearance before the Senate Judiciary Committee just before a hearing on this issue was to commence this morning. But in prepared remarks already submitted to the panel, he said the measure would “create serious impediments” to the Justice Department's ability “to effectively enforce the law and fight terrorism.”

“The bill is bad public policy primarily because it would bar the government from obtaining information about media sources — even in the most urgent of circumstances affecting the public's health or safety or national security,” Comey's prepared remarks said.

“If that is so,” said Sen. Christopher Dodd, “then wouldn't we expect to see great threats to public safety in those states that have shield laws which are at least as protective as the shield laws that we propose?” Dodd, D-Conn., is a consponsor of the Senate bill.

The panel is considering a bill, the Free Flow of Information Act of 2005, sponsored by Sen. Richard Lugar and Rep. Mike Pence, both Indiana Republicans, that would protect reporters from being imprisoned by federal courts.

Thirty-one states and the District of Columbia have such “shield” laws, but there is no set of standards that applies in federal courts. It is the federal court's power that the Senate panel wants to examine.

A leading critic of the press’s claims of First Amendment protections and Judith Miller refusal to obey a court order in the Valerie Plame leak case told the committee this morning that Congress should enact a federal shield law for reporters.

“A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society,” Geoffrey R. Stone, a law professor at the University of Chicago, said in testimony prepared for the hearing.

Stone is the author of the 2004 best seller, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.

“The absence of a federal privilege creates an intolerable situation for both journalists and sources,” Stone said in his written testimony. “This generates uncertainty, and uncertainty breeds silence.”

Listing similar privileges for doctors, lawyers, priests, psychotherapists and spouses, Stone wrote that “public policy certainly supports the idea that individuals who possess information of significant value to the public should ordinarily be encouraged to convey that information to the public.”

Proponents of the law say that its need has been underscored by a number of recent cases of reporters being threatened with jail if they refused to divulge their sources. Two weeks ago, a federal judge sent New York Times reporter Judith Miller to jail for refusing to divulge who told her that Plame, the wife of former Ambassador Joseph Wilson, was a CIA officer. Miller never actually wrote a story using the name of the formerly undercover CIA officer.

Pointing to broader implications, the special prosecutor in the Plame case, Patrick Fitzgerald, said earlier this month that “we can't have 50,000 journalists” making their own decisions about whether to reveal sources.

The bill would stop short of giving reporters absolute immunity. In response to a request from Justice, the sponsors added an exception for cases where source identification is essential for protecting national security.

“It simply gives journalists certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment, much as, in the public interest, we allow psychiatrists, clergy and social workers to maintain confidences,” Pence said in prepared testimony.

A journalist who did publish Plame's identity, Time magazine's Matthew Cooper, also testified before the committee today. Cooper barely escaped being sent to jail when he said his source, presidential adviser Karl Rove, had released him from their confidentiality agreement.

Cooper told the committee that protecting reporters and their sources was key to the news media's ability to shine light on government wrongdoing.

The patchwork of state shield laws and the absence of a federal statute make it confusing for reporters promising sources anonymity in exchange for information, Cooper said.

“We need some clarity,” he said. “As a working journalist, I'd like to know better what promises I can legally make and which ones I can't.”

In his submitted testimony, Stone also made these points:

  • If the privilege is qualified, it “undermines the very purpose of the journalist-source privilege.” On the other hand, an absolute privilege serves not only the public and the press but the administration of justice. “In many instances,” he wrote, “the privilege will impose no cost on the legal system, because without the privilege the source may never disclose the information at all. … Law enforcement is actually better with the privilege than without it.”

  • The privilege belongs to “the person whose communication society wants to encourage.”

  • The importance of the privilege must not be measured from when a reporter refused to divulge a source — when “the cost of the privilege will seem high, because we appear to be ‘losing’ something quite tangible” — but on the moment when a source speaks with the reporter.

  • Without a federal law granting privilege to the journalist-source relationship, the statutory and common law privilege in 49 states and the District of Columbia are undermined. Absence of a federal privilege “wreaks havoc on the legitimate and good faith understanding and expectations of sources and reporters throughout the nation.”

    In his testimony before the committee today, news media lawyer Lee Levine cited a list of legal and journalistic precedents for a national shield law.

    “Given that, I believe the time has now come for congressional action,” Levine said.

    Also testifying were Time magazine Editor in Chief Norman Pearlstine, First Amendment lawyer Floyd Abrams and former New York Times columnist William Safire.

    U.S. District Judge Thomas Hogan held Miller and Cooper in contempt in October, rejecting their argument that the First Amendment shielded them from revealing their sources. Last month the Supreme Court refused to intervene.

    Comey canceled his Senate appearance to meet with House Republican leaders on the Patriot Act, Justice Department spokeswoman Tasia Scolinos said.

    First Amendment Center Ombudsman Paul K. McMasters contributed to this story.