Salt Lake Tribune — U.S. needs reporter shield law to keep the whistles blowing

• By: ASNE staff
• On: 10/14/2010 09:51:00
• In: Shield law editorials

The Salt Lake Tribune
October 9, 2010

By Joe Campbell

The passage of a bill that will give journalists a shield from revealing confidential sources under federal law has never been closer to a presidential signature, and Congress shouldn't let this opportunity pass.

Speaking at the national Society of Professional Journalists (SPJ) conference in Las Vegas this week, a panel of experts led by RonNell Andersen Jones, a Brigham Young University associate professor of law, said that passage of the law faces several obstacles, including U.S. Senate Republicans who may use Senate rules to delay a vote for what has been named the Free Flow of Information Act, S. 448.

In two separate studies, Andersen Jones found plenty of support for a shield law. A survey conducted in 2007 found that nationwide more than 7,000 subpoenas were issued to daily newspapers in a single year. That included more than 800 subpoenas issued in federal court proceedings.

A second survey of news organizations found that many did not resist subpoenas because of expected legal costs. Other news organizations chose not to cover some news stories because of the possible legal threat of subpoenas and the possible legal costs to pursue such stories. That is particularly true for the smallest U.S. TV news departments and newspapers.

In an era when federal appeals courts have begun strictly interpreting an implied right to protect sources under the First Amendment, journalists are claiming such a shield law is needed more than ever. Some point to the jailing of former New York Times reporter Judith Miller, who spent 85 days in jail in 2005 for not revealing a White House source.

“It&'s apparent to members of SPJ that, if we are to continue to provide the kinds of stories that the American public needs, we need passage of this bill to protect sources, journalists and the public&'s interest,” outgoing SPJ President Kevin Smith said.

Proponents say the bill has a clear majority of 77 supporters in the Senate, and President Barack Obama has promised to sign it. Senate Republicans can use technical rules and a backlog of bills waiting for action during the upcoming post-election session to stall the bill.

If passed, the law would protect journalists from revealing confidential sources in some circumstances. In more than 40 states journalists enjoy a similar reporter-source privilege. In Utah, a judicial rule protects reporters from revealing confidential sources except in cases where the safety of a person may be involved.

The primary argument why reporter-source privilege should join other confidentiality privileges, including attorney-client privilege and cleric-penitent privilege, is that such a privilege protects whistleblowers and others who may expose corruption and wrongdoing in government or society. The bill has had bipartisan support, including Rep. Mike Spence, R-Indiana. The former radio talk show host now considering a run for the presidency helped lead a successful passage of an earlier version of the bill in the U.S. House.

Without some promise of confidentiality, sources may be unwilling to share information with journalists. In short, without shield laws, important information could dry up because the chilling effect lack of such laws would produce.

One of the main sticking points in passing the law through the Senate has been defining just who is a journalist. Certainly, most agree, it should include reporters working for traditional print and broadcast outlets. But what about bloggers or so-called citizen journalists?

Before the current version of the bill passed out of the Senate Judiciary committee on a party-line vote, Sen. Dianne Feinstein, D-Calif., insisted on adding a provision aimed at excluding bloggers and groups such as WikiLeaks, which released thousands of documents related to the Afghanistan War in July.

Some journalists remain skittish of any attempt of the government to define journalists. They contend such definitions are counter to the First Amendment&'s injunction that “Congress shall make no law” that infringes on the freedom of the press. Media attorneys say they may be willing to pull the plug on the bill if additional language is added to further limit the definition of a journalist. We shouldn't let legitimate discussion over who is a journalist stop this bill from becoming law.

Joel Campbell is a former reporter and current associate professor of communications at Brigham Young University. His reporting does not necessarily reflect the views of BYU. He writes on First Amendment and open-government issues for The Tribune. He can be reached at foiguy@gmail.com.