Tribune-Democrat — Federal shield law for journalists long overdue

• By: ASNE staff
• On: 07/16/2007 14:25:33
• In: Shield law editorials

The Tribune-Democrat, Johnstown, Pa.
June 22, 2007

By Clay Calvert

We’ve heard a great deal – and learned some hard lessons – recently about the combustible combination of journalists, jail and protecting information, including confidential sources and work product.

In 2006, a federal judge ordered to jail two reporters – Mark Fainaru-Wada and Lance Williams – from the San Francisco Chronicle who refused to tell a grand jury the names of the source who leaked to them confidential grand jury transcripts related to the BALCO steroid controversy.

The judge stayed the sentence until an appellate court could hear the case and, in February 2007, the Chronicle reporters caught a break and avoided doing time when a defense attorney for BALCO executives admitted he leaked the transcripts. At that stage, prosecutors withdrew their subpoenas of both reporters and, in March, Judge Jeffrey White vacated contempt findings and sanctions.

In 2006, freelance journalist and video blogger Joshua Wolf was found in civil contempt and sent to jail by a federal judge after Wolf refused to produce a videotape he made of a protest demonstration in San Francisco.

Wolf remained jailed well into 2007, becoming the longest-jailed journalist on a contempt charge in recent years.

Wolf’s 169th day in jail in February surpassed the record of 168 days that writer-author Vanessa Leggett spent in a federal prison in 2001 for refusing to reveal to a grand jury confidential research materials gathered while working on a book about a murder.

It was not until April, after spending a record 226 days in jail, that Wolf was released upon striking a deal with prosecutors to turn over unaired videotape (he then simultaneously posted this video on his Web site).

Thirty-three states, including Pennsylvania, have shield laws, with Connecticut joining the ranks in 2006 and Washington in April 2007. The scope of these laws varies from state to state, in terms of who and what is protected.

There is, however, no federal shield law, although several attempts have been made in recent years.

On May 2, the latest such proposal was introduced in Congress in identical bills (House Bill 2102 and Senate Bill 1267) known as the Free Flow of Information Act of 2007.

The bills would protect “a person engaged in journalism,” with journalism defined as “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.”

Those who meet this definition would have a qualified privilege not to testify and not to produce documents in federal proceedings or “in connection with any issue arising under federal law.”

The privilege would not be absolute, and journalists still could be compelled to testify if the government proves that all reasonable alternative sources for the same information are exhausted and that the information or source identity relates directly to matters such as national security or trade secrets or that it is “necessary to prevent imminent death or significant bodily harm.” These exceptions are designed to balance interests.

When a similar bill came for a hearing in October 2005 before the U. S. Committee on the Judiciary, the testimony of Dale Davenport, the editorial page editor of The (Harrisburg) Patriot-News, succinctly captured the need for a federal shield law.

“The intent of a shield law is not to protect journalists. A shield law protects the thousands upon thousands of ordinary Americans who facilitate the free flow of information – mostly in anonymity and mostly by choice – that journalists deliver to the public,” Davenport stated.

Stressing why a federal shield law is needed in addition to Pennsylvania’s law, Davenport testified that “when reporters agree to protect the confidentiality of a source, they don’t know if they will be called to testify in state court or in federal court. In state court, they usually can protect their promise. In federal court, they may not be able to. The lack of federal protection makes it difficult for journalists to rely on state shield laws in the real world.”

Let’s hope that 2007 is the year the federal government, in the choppy wake of the I. Lewis “Scooter” Libby debacle, finally adopts a shield law.

Clay Calvert is a professor of communications and law and co-director of the Pennsylvania Center for the First Amendment at Penn State.