Shield Law Called a Public Service

Advocates for a federal law that would shield journalists from having to disclose confidential sources told the Senate Judiciary Committee on Wednesday that the lack of such protection was impinging on the public’s right to information.

But the panel’s Republican chairman said journalists should not hold their breath. And some unexpected opposition came from Democrats who said they found the proposed law too sweeping.

The bill would compel the naming of a source by a journalist only when the identity of that source was necessary to prevent imminent and actual harm to national security.

“The absence of federal legislation has created extraordinary chaos, limiting the public’s access to important information that is so necessary in a democratic society,” said Norman Pearlstine, editor in chief of Time Inc., who recently turned over confidential documents to the special prosecutor investigating the leak that revealed the identity of Valerie Plame as a CIA agent.

The Justice Department has gone on record opposing the proposed shield law. In written testimony, Deputy Atty. Gen. James B. Comey questioned the proposed legislation’s definition of a journalist, which he suggested was so broad it would protect corporate affiliates and even publishers of sales catalogs.

Sen. Dianne Feinstein (D-Calif.) said she was concerned about giving reporters a privilege so “extraordinarily broad” that national security could be compromised.

Citing California’s shield law -- 31 states and the District of Columbia have enacted protections for journalists -- Feinstein advocated a narrower approach than the one proposed by the bill’s sponsors, balancing the public good served by source confidentiality and the need to prosecute illegal behavior.

And Sen. Richard J. Durbin (D-Ill.) wondered if such a law should not be further restricted to require reporters to divulge the names of criminals who may contact them.

Judiciary Committee Chairman Arlen Specter (R-Pa.) acknowledged after Wednesday’s hearing that chances of congressional action this year were unlikely because of more pressing business facing the Senate.

Sen. Richard G. Lugar (R-Ind.), chairman of the Senate International Relations Committee and one of the bill’s co-sponsors, said the jailing of New York Times reporter Judith Miller for refusing to disclose her source in the Plame case had hurt the U.S. internationally.

“Global public opinion is always on the lookout to advertise perceived American double standards,” he said. “This is evident in the ironic international response” to Miller’s jailing. Quoting the Guardian newspaper in London as saying “the American Constitution no longer protects the unfettered freedom of the press,” Lugar said that with reporters in jail in China, Cuba and Myanmar, “that is not good company for the United States of America.”

Washington lawyer Lee Levine, who represents the Los Angeles Times and Associated Press in the U.S. government’s investigation of a leak about Wen Ho Lee, a nuclear scientist who was targeted as a spy, suggested that in crafting a law to protect both journalists and their sources, problems of definition abound.

“One person’s whistle-blower,” he said, “is another person’s slander-monger.”

University of Chicago Law School professor Geoffrey Stone said that for 180 years, prosecutors did not subpoena journalists out of respect for the 1st Amendment. In 1972, a deeply divided Supreme Court ruled in Branzburg vs. Hayes that journalists had no constitutional protection from disclosing sources. In the last two years, he said, journalists have been subpoenaed in record numbers, a development he called “a serious anomaly.”

William Safire, former columnist for the New York Times, urged Congress to follow the lead of the states in enacting protection for journalists. With his onetime colleague, Miller, in jail, Safire said he was “constrained to speak gently, as if concerned about treatment of a hostage,” out of fear that prosecutors might retaliate against her.