Legislation designed to protect journalists' confidential sources from being exposed in open court is progressing toward becoming law as the Senate prepares to vote on its version of the shield law. The House passed a version of the bill in March, but objections from the White House and others wary of its national security implications had stalled the Senate's progress until this month, when a committee approved key elements of the measure.
The new law would apply only to the federal courts. Because the federal bench hears high-profile national security cases, like the proceedings over the outing of CIA officer Valerie Plame, the White House and the Justice Department were keen to retain the power to force reporters to divulge the sources of classified information. (In the Plame case, New York Times reporter Judith Miller spent nearly three months in jail before eventually disclosing her source to the court.)
A significant compromise in the legislation is a proposed balancing test, permitting a judge to weigh the merits of each side before compelling testimony. In some cases, where the government can demonstrate that a terrorist attack is imminent, for instance, there would be no balancing test and the reporter would have to disclose the information. Democratic Sen. Charles Schumer, a sponsor of the bill, says it "strikes the right balance between national security concerns and the public's right to know."
Far more cases involving the subpoenaing of journalists occur in state courts because they vastly outnumber federal courts. The District of Columbia and 36 states have their own media shield laws. Some protect journalists' notes, video outtakes, and other materials gathered in the course of reporting, in addition to confidential sources. Nonetheless, journalists sometimes incur fines or jail time in state courts for refusing to divulge sources or notes.
The new federal law would offer journalists appearing in federal courts less protection than these existing state-level laws. "Even with its limited protections, something is better than nothing," says Lucy Dalglish, president of the Reporters Committee for the Freedom of the Press. Lawmakers and journalists have talked about a federal shield law for years, but progress frequently has stalled over nagging issues. One such hurdle is how the government determines who is—and who is not—a legitimate gatherer of news and entitled to shield law protection.
The media landscape has shifted dramatically as traditional outlets have shed staff and shifted to digitally oriented business models. The Internet also has created legions of citizen journalists who might not gather news as their sole means of employment but nonetheless play a major role in the public debate. Under the Senate version of the bill, anyone whose "primary intent" is to "disseminate to the public news" would enjoy protections. Foreign government agents and members of terrorist organizations, meanwhile, are exempted explicitly. Despite some hesitancy, President Obama has been a proponent of the legislation, having backed the idea as a candidate. Congress will most likely vote on the issue early next year.