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March 14, 2005
Federal Shield Law For Exempt Media?

The AP reports that bills granting reporters a shield from revealing their sources has gained Congressional support and may soon come up for debate. The prosecution of several journalists with national media outlets have given the issue some momentum and a sense of urgency, although it appears that debate will be all that's scheduled for this year:

Legislation to require prosecutors and judges to meet strict national standards and exhaust other remedies before they could subpoena reporters has both Republicans and Democrats as sponsors in the House and Senate.

Support is building now that several reporters are closer to facing jail, but the Bush administration is silent on the issue and Congress isn't likely to vote on it this year. ...

So far, a dozen House members have signed on to Pence's "free flow of information act," which in general would prohibit federal entities from forcing reporters to disclose the identity of a confidential source. A similar measure has four co-sponsors in the Senate.

Does a federal shield law really make sense? In some senses, yes. It allows for government and corporate malfeasance to come to light when other channels do not exist or refuse to address it. While we always suspect the motives of whistleblowers, their existence keeps us informed and aware of abuses, hopefully limiting the damage they can do to us. On the other hand, they often act as Trojan horses for petty revenges and even misinformation on their own. The most notorious case, the one pressing the bill forward, is the Plame outing. Originally the whistleblower was suspected of committing a crime, but after Joseph Wilson was found to have lied about his assignment and how he got it, it turned more into a whistleblower case.

A number of states already have shield laws protecting reporters from subpoenas issued in state courts. The concern is that these do not cover federal courts even within the states that have shield laws and a federal law is needed to ensure blanket application, but prosecutors worry that giving the press a free pass allows too many witnesses to hide behind the headlines instead of giving evidence in an orderly manner. The proposed law tries to split the difference by giving the judge some leeway in compelling testimony if all other options fail (Section 2):

(a) Conditions for Compelled Disclosure- No Federal entity may compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under Federal law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to the covered person--

(1) that the entity has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than a covered person; and

(2) that--

(A) in a criminal investigation or prosecution, based on information obtained from a person other than a covered person--

(i) there are reasonable grounds to believe that a crime has occurred; and
(ii) the testimony or document sought is essential to the investigation, prosecution, or defense; or

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter.

I would tend to support this, with the limitation clear that prosecutors must establish a crime had been committed and that all other options had been exhausted. However, I do note that once again, Congress has taken care to limit the privilege to the Exempt Media (Section 7-1a):

an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that --

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service

Looks like bloggers get left out in the cold again.

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Posted by Ed Morrissey at March 14, 2005 7:52 PM

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