So the latest federal shield law got its first hearing yesterday. I am both surprised and not surprised. I am surprised that there exists some pretty nice bipartisan support for something so seemingly abhorrent to politicians as journalistic privilege.
But I’m not surprised at the Department of Justice’s problem with the nature of the legislation. As the New York Times reported this morning, the two-and-a-half-hour hearing was standing-room-only. While the DOJ expressed problems with the bill, its representative did not bother to attend or testify before the committee. Here's the Times:
James B. Comey, deputy attorney general, said in a statement, "The bill is bad public policy primarily because it would bar the government from obtaining information about media sources - even in the most urgent of circumstances affecting the public's health or safety or national security."
"The bill would seriously jeopardize traditional notions of grand jury secrecy and unnecessarily delay the completion of criminal investigations," Mr. Comey added.
To address concerns in Congress and the Justice Department, both the Senate and the identical House bill were recently revised to carve out an exception for national security issues.
Basically, Comey and the DOJ were working off an outdated version that didn’t specify exceptions in the case of imminent national security threat.
What frequently gets lost in the discussion about a federal shield law or any reporter’s privilege is that the goal is NOT to protect any criminals or blatant criminal activity, nor is it to raise journalists above the law, it is simply to protect the public’s right to know what its government, business and others are doing.
Case in point is this piece in this week’s Scene magazine that points to possible corruption at Cleveland City Hall throughout the 1990s. Here’s the Plain Dealer story that many feel was one being held for fear for legal repercussions.
An editorial in today’s Times even mentions the Plain Dealer’s dilemma as evidence of the need for a federal shield law since the stories above involve a federal grand jury.
Norman Pearlstine, editor in chief of Time Inc., testified yesterday that since his decision to turn over notes in the Valerie Wilson case to the federal prosecutor, Time reporters had shown him mail "from valuable sources who insisted that they no longer trusted the magazine." The Cleveland Plain Dealer has announced it will not publish two investigative reports because they are based on leaked documents and the paper fears the possibility of subpoenas. Its editor said, "Jail is too high a price to pay." We regret that decision, but it should at least ring alarm bells for Congress.
The Society of Professional Journalists has been involved with the issue and National President Irwin Gratz issued this statement yesterday.
Irwin writes of recent court interpretations and how those are driving discussion of the need for shield law.
Then, two years ago next month (August 2003), Judge Richard Posner of the 7th Circuit Court of Appeals, in a ruling involving Michael McKevitt took issues with those court rulings:
“Some of the cases that recognize the privilege, such as Madden, essentially ignore Branzburg, ... some treat the "majority" opinion in Branzburg as actually just a plurality opinion, such as Smith, ... some audaciously declare that Branzburg actually created a reporter's privilege.”
Posner's findings have been echoed by several other judges in the past two years, leading to the increased likelihood that prosecutors would subpoena reporters. And they have. In the most notorious case to date, New York Times reporter Judy Miller has been jailed for refusing to comply with a subpoena. So, we, and other journalism groups are turning to a practical solution that has worked in 31 other states: a shield law. Some don’t like a shield law because it will lead to Congress to classify who is a journalist. But SPJ is pushing for language, currently in the draft statute, that would create a “function test.” In other words, whoever you are, if you are doing journalism, you’ll be covered. Others have argued a law passed by Congress can be repealed by a future Congress piqued by our work. So what? That won’t leave us any worse off than we are now. And some still prefer to believe the First Amendment is all the protection we need. But recent court rulings make it clear that’s not true.
I’ll be writing about this in my next Quill column.
And finally today
I am deeply humbled to have read this post by my pal and fellow writer, John Ettorre. He and a handful of others have steadily encouraged me to push my skills ever further in the past two years. But he was the first to grant me permission to let my voice be heard and it was through that gentle prodding that I found my courage to write.
Thank you, John.
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