Media Shield Law Remains in Doubt
By HOPE YEN
Associated Press
March 17, 2008
WASHINGTON (AP) -- As federal judges order more reporters to disclose their confidential sources, news organizations are pinning their hopes on congressional passage of a media shield bill the Bush administration opposes as a threat to national security.
The legislation being considered in the Senate offers only modest shelter for reporters wanting to protect the identity of confidential sources. In many cases, it would leave the fate of journalists -- and their sources -- to the discretion of judges who increasingly have been willing to jail or fine them.
Out of nine high-profile cases since 2003 where journalists were ordered to reveal information, four might have turned out differently had the proposal awaiting Senate action been law.
For them and dozens of other reporters subpoenaed for confidential information or the names of those providing that information, judges generally would have to weigh the ''public interest'' of the media reports; that is a factor many judges already consider. They would retain the power to jail reporters who refuse to name sources who leak information involving national security.
If the Senate bill were law, former New York Times reporter Judith Miller still may have gone to jail for 85 days for refusing to identify the government official who breached national security rules by leaking a CIA agent's name.
But two San Francisco reporters might not have faced the prospect of 18-month jail terms for refusing to name the source for leaks of secret grand jury testimony that shed light on a steroid scandal in professional baseball.
Former USA Today reporter Toni Locy might benefit if a judge assigns enough ''public interest'' value to her reports about the government's investigation into the 2001 anthrax attacks. For now, she faces fines of up to $5,000 a day unless she discloses her Justice Department sources. This ruling, if embraced by other courts, could confront reporters with the prospect of bankruptcy for protecting sources.
Supporters of the Senate bill and a House-passed version cite press reports about secret CIA prisons, warrantless wiretaps of U.S. citizens and top Nixon administration officials' crimes that came to light through confidential sources.
''Reporters, editors, publishers and their lawyers cannot with assurance articulate the rules governing confidentiality because legal standards are hopelessly muddled,'' said Ted Olson, a former solicitor general in the Bush administration who is backing a shield law to create uniformity in the courts.
''Fearing the consequences of exposure, sources withdraw,'' Olson said.
The administration opposes both versions and says it would be nearly impossible to enforce laws against unauthorized releases of classified information.
The government would have to provide evidence of ''significant and articulable harm'' to national security -- rather than a general claim -- in addition to making judges weigh the public interest in protecting confidential sources.
Attorney General Michael Mukasey has said the Senate bill defines a journalist too broadly.
News organizations win about 60 percent of state and federal cases involving reporters' privilege each year, with journalists losing more often when a grand jury is involved, according to a 2007 analysis by media lawyer James Goodale.
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