"News industry advocates are urging passage of a proposed federal shield law..."
In Wake of Plame Ruling, Federal Shield Law Seen as Best Hope
By Joe Strupp
Published: February 16, 2005 12:40 PM ET
NEW YORK As the fallout continues from a federal appeals court's rejection yesterday of two reporters' claims that they should avoid jail for refusing to reveal sources in the Valerie Plame case, news industry advocates are urging passage of a proposed federal shield law as the best way to counter such legal actions in the future. [it. added]
Hopes hang on two versions of such a law that were introduced earlier this month in the House and Senate. Each would provide protection similar to that of shield laws currently on the books in 31 states and the District of Columbia.
The Reporters Committee for Freedom of the Press yesterday called for a "coordinated effort" [see below] to support a federal shield law in the wake of the unanimous decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. That ruling denied an appeal from Judith Miller of The New York Times and Matthew Cooper of Time magazine, who were ordered jailed last fall for up to 18 months for refusing to disclose sources that leaked to them the identity of CIA Agent Valerie Plame. Lawyers for both plan to appeal, likely delaying any jail time for at least several weeks or months.
The ruling has heightened concerns about the need for a federal law in the wake of not just the Plame case but also several other federal investigations from Washington to San Francisco that have resulted in subpoenas or demands for sources from numerous reporters. While more than half the states have shield laws, none exist at the federal level.
"The decision in this case underscores that these are perilous times for journalists and the public's right to know," said Lucy Dalglish, the Reporters Committee executive director. "There are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants. The ability of the media to act as independent sources of information for the public is in jeopardy."
George Freeman, a New York Times attorney who has worked on the paper's defense of reporters in several cases, agreed that a federal law is imperative. "There is an inequity between the state and federal courts on this," Freeman told E&P today. "This would provide similar protection."
Two similar shield bills have been introduced in Congress in the past two weeks.
The first, H.R. 581, is co-sponsored by Rep. Mike Pence (R-Ind.) and Rep. Rick Boucher (D-Va.) and was introduced Feb. 2. The Senate version, S. 3440, is authored by Sen. Richard Lugar (R-Ind.), who introduced it on Feb. 9. Sen. Chris Dodd (D-Conn.) offered his own bill in late 2004, but has yet to introduce a new version for the current session.
"Reporters rely on the ability to assure confidentiality to sources in order to deliver news to the public, and the ability of news reporters to assure confidentiality to sources is fundamental to their ability to deliver news on highly contentious matters of broad public interest," Boucher said in a statement after introducing his bill. "Without the promise of confidentiality, many sources would not provide information to reporters and the public would suffer from the resulting lack of information."
Freeman said the bi-partisan sponsorship is a strong sign that the issue is not being treated as just a political battle. "We're heartened that we have support from both sides of the aisle," he said. "I think everyone in Washington realizes this is the way information gets to the public."
Still, even the strongest supporters realize that the chances of getting a bill passed this year and signed by President Bush, who has shown little support for press access and rights, is slim. But they realize that just debating the issue in congress can move such laws a step closer to reality.
Irwin Gratz, president of the Society of Professional Journalists and a producer at Maine Public Radio, agreed that the pending bills are important as a strong response to the federal court actions. "Clearly, it would help us in a lot of places where there is no protection," he told E&P. "Reporters are pretty naked on this issue. We presume to have a First Amendment protection, but we really don't have much of anything nationally."
Bob Steele, the Nelson Poynter Scholar for Journalism Values at the Poynter Institute, also supported such a law. But, he stressed that even a federal shield statute would not give blanket protection on confidential sources.
"It is one step and it is a less-than-perfect step," Steele said. "It would not be absolute. Journalists would still have to justify in some cases why the shield law applies."
Joe Strupp (email@example.com) is a senior editor at E&P.
The Reporters Committee for Freedom of the Press
FOR IMMEDIATE RELEASE -- Contact: Lucy Dalglish, (703) 807-2100
Reporters Committee calls for shield law passage in wake of today's D.C. Circuit decision
"The decision in this case underscores that these are perilous times for journalists and the public's right to know," said Reporters Committee Executive Director Lucy Dalglish. "There are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants. The ability of the media to act as independent sources of information for the public is in jeopardy."
The shield bills current under consideration in Congress were introduced in early February by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) in the House (H.R. 581), and by Sen. Richard Lugar (R-Ind.) in the Senate (S. 3440). A similar bill was introduced late in the last congress by Sen. Chris Dodd (D-Conn.), but no action was taken.
In today's action by the D.C. Circuit, the three-judge panel unanimously held that no privilege would protect Time magazine reporter Matthew Cooper and New York Times reporter Judith Miller from being compelled to testify about their sources. The court held that the U.S. Supreme Court "unquestionably" answered the question about maintaining confidentiality before grand juries in 1972 in Branzburg v. Hayes.
This leak investigation began after undercover CIA officer Valerie Plame's identity was published by columnist Robert Novak in a July 2003 column. Novak cited two unnamed "senior administration officials" as his sources.
Following the Novak column, several other journalists, including Cooper, reported receiving the same information. Miller did not report on the allegations, but was subpoenaed after her name apparently came up during the investigation as another journalist who had also heard the disclosure.
The leak has been characterized as a politically-motivated attack on Plame's husband, former Ambassador Joseph C. Wilson IV, because Wilson publicly criticized the Bush administration's assertion that Iraq had been attempting to buy uranium from Niger to make nuclear weapons. The unnamed sources disclosed Plame's name to point out that Wilson, who had travelled to Africa for the CIA in order to investigate the uranium claims, was only chosen because his wife suggested him for the assignment.
Special prosecutor Patrick Fitzgerald was appointed to investigate the leak last fall, which could lead to criminal charges if the leakers were aware that Plame was an undercover operative. Fitzgerald subpoenaed or otherwise demanded testimony from a number of journalists -- including Cooper, Miller, Tim Russert, host of NBC's "Meet the Press," and Walter Pincus and Glenn Kessler of The Washington Post -- before a grand jury concerning alleged conversations the reporters had with confidential sources. It is not known if Novak has been subpoenaed or if he has testified.
Miller received a subpoena to testify before the grand jury on Aug. 12. Cooper reached an agreement with prosecutors and testified about conversations with Libby on Aug. 24, but was then subpoenaed again Sept. 14. In October, Hogan held Miller and then Cooper in contempt, fined them $1,000 per day and ordered them to jail until they testify. The fines and sentences were stayed pending a consolidated appeal. The U.S. Court of Appeals (D.C. Cir) heard oral arguments on Dec. 8 and released its decision today.
More information about the federal shield bills and the grand jury investigation into the Plame matter is available from the Reporters Committee's Web site at: www.rcfp.org/shields_and_subpoenas.html