Bill to shield reporters, secret sources

An anonymous source tips off a reporter about a massive crime ring or government fraud. The journalist investigates, and as a last resort, promises never to reveal the source’s identity in exchange for information.

Within months, the reporter is behind bars and up to his neck in legal fees for keeping his promise.

Though the scenario sounds like a television crime drama, reporters are finding themselves in expensive, lengthy legal battles, or worse, in jail, for refusing to turn over confidential notes and sources to federal officials.

A new bill, the Free Flow of Information Act of 2007, would give reporters some protection against compelled disclosure of confidential sources. It was passed by the House of Representatives Oct. 16.

Sen. John Cornyn, R-Texas, supports a media shield measure that achieves a balance between safeguarding freedom of the press and protecting national security. He also would like to see the bill apply to college newspapers, such as The Bells.

“I believe that when information can be made public, it should be made public,” Cornyn said. “I oppose the government subpoenaing reporters to provide information that criminal investigators could obtain using traditional investigative means. 

National security risk?

Critics fear the proposed law could interfere with federal investigations and create potentially hazardous consequences for law enforcement and national security. Cornyn suggested lawmakers must take such risks into consideration when voting for a federal shield bill.

“This legislation also affects national security interests, the prosecution and investigation of serious crimes, the ability of civil litigants to retrieve unlawfully disclosed information such as trade secrets, unlawful leaks of classified information and the government’s ability to respond to terrorist threats,” he said.

The act is bi-partisan supported and aims to protect reporters from being compelled to divulge confidential sources, unless the information poses imminent harm to national security, imminent death or significant bodily harm, a trade secret “of significant value in violation of state or federal law,” individually identifiable health information, and where nondisclosure of the information would be contrary to public interest.

Who is a journalist?

Critics of the federal shield bill say it may protect people who are not legitimate journalists.

The House bill defines “journalism” as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.”

UMHB mass media law professor Joseph Tabarlet said the broad definition is offered to allow the greatest protection for the most people.

“If you want to pass a law that has the maximum amount of protection and will do what you want it to do to the maximum extent, then you want to make the definitions as loose and vague as you possibly can to cover the maximum number of people,” he said. “However, that has the disadvantage of allowing people to use it as a loophole to escape prosecution.

“Sometimes the definition is intentionally left vague to provide protection and allow each journalist to hash out whether they qualify.”

As it stands, 33 states and the District of Columbia offer a form of shield law protection, and an additional 16 have reinforced a reporter’s right to safeguard sources in various court decisions. However, many journalists have expressed concern because the federal government has never passed a shield law.

Protecting sources can mean jail

San Francisco Chronicle sports writer Mark Fainaru-Wada faced contempt of court charges and an 18-month jail sentence for protecting sources in 2006.

He and reporter Lance Williams received subpoenas to testify before a federal grand jury about how they acquired grand jury testimony involving steroid use among high-profile athletes such as baseball legends Barry Bonds and Jason Giambi and Olympic track stars Marion Jones and Timothy Montgomery as well as others.

“The reason we got into trouble in our case is because there is no federal protection at all right now for reporters,” Fainaru-Wada said. “So, absolutely, a federal shield law is imperative. There are cases that are going to happen that include the federal courts, and you can’t have reporters having to worry about going to jail for doing their jobs.”

Fainaru-Wada said for a reporter to be subpoenaed at the federal level, the attorney general himself signs off on subpoenas. For the past 30 years, the Department of Justice abided by guidelines that existed to protect reporters and confidential sources from illegitimate compelled disclosure of sources and called for reporters only to be subpoenaed under exigent circumstances, under former Attorney General John Ashcroft.

He said exigent was defined as a threat to someone’s life or national security. However, with the change in leadership, a new dynamic between press and prosecutors emerged. 

Justice clashes with media

“What’s happened over the course of the past three years is that the social contract that existed between the justice department and the media has evaporated,” Fainaru-Wada said. “As evidenced from our case, clearly these guys think they can do whatever they want with the guidelines. There seems to be no one manning the house right now.”

 In Feb. 2007, attorney Troy Ellerman came out as the confidential source who allowed Fainaru-Wada and Williams access to transcripts of grand jury testimony. He pleaded guilty to four felony counts of obstruction of justice and disobeying court orders, and charges were dropped against the San Francisco Chronicle reporters.

Fainaru-Wada said Hearst Corporation spent an “ungodly amount of money” defending him, and the company risked up to $50 million in fines for protecting Ellerman.

While spending a minimum of two days every week dealing with legal issues, he said it was difficult to do his regular job and face the prospect of leaving his family for a locked cell. 

“There was also an emotional toll. I was thinking every day about if I was going to go to jail,” he said. “I’m pretty good at being in denial, but I wasn’t that good at it.”

Mixed feelings on shield bill

Chicago Tribune reporter David Kidwell can relate to Williams’ and Fainaru-Wada’s predicament. While working for the Miami Herald, he spent 14 days in a Florida county jail in 1996 after refusing to testify against a murder suspect and hand over notes from his jailhouse interview with a person accused of murdering his 7-year-old daughter.

“I just felt like it was wrong,” Kidwell said. “That wasn’t my purpose for going to the jail that day. My purpose wasn’t to be an undercover police officer. My purpose was to be fair and to give the guy equal access to the front page.” 

Despite his own experience, Kidwell has mixed feelings on the new legislation.

“I guess for practical purposes it will help in the short term,” Kidwell said. “It leaves us with a safer frame of mind, but I think protection lies in the Constitution, not in the legislature. I have a philosophical conflict with asking lawmakers for anything. Asking favors from people we’re supposed to be covering doesn’t sit well with me.”

Though Kidwell claims to have no faith in the system right now, he said reporters must consider personal integrity when granting confidentiality to a source.

“When I make a promise to someone, to me for my own individual purposes, that’s bigger than the law—any law.”

Kidwell said he doesn’t believe passage of a federal shield law will drastically lessen the risk journalists take when they grant sources anonymity.

“If a reporter is going to extend that promise, and they refuse to violate it, they go to jail. That’s just the way the system works. I don’t think that’s going to change, no matter what the law is or what the Supreme Court says.”

Beating the system

Manny Garcia is an assistant managing editor for metro coverage at the Miami Herald. He has been a reporter on two Pulitzer Prize winning pieces and is also a board member of Investigative Reporters and Editors, a grass roots nonprofit organization dedicated to improving the quality of investigative reporting.

Garcia was supposed to give grand jury testimony after federal prosecutors sought access to confidential files he had obtained.

“I viewed it as a threat and as an attempt of prior restraint, so I didn’t give them an answer and said we’d talk to a lawyer,” he said. “We went ahead and published the story anyway.”

Garcia said he would fully support his reporters and editors if they fight subpoenas or contempt of court charges. He believes a federal law is important to add to the level of protection reporters must have to do their jobs.

“I think any kind of shield law that protects journalists is needed because the public has the right to know, and reporters are often dependent on individuals within government agencies for leaking documents,” he said. “This is critical because after 9/11, a lot more that used to be public record is being hidden from public view. We’re becoming even more dependent on people.”

Where is the bill now?

House passage of the Free Flow of Information Act of 2007 with a 398 to 21 vote was celebrated by more than 50 media companies and organizations last month.

Before the bill can become law, it must first pass through the Senate by Nov. 16, and President George Bush must endorse it. If he doesn’t sign it into law, it will automatically be vetoed (via a “pocket veto”).

Sen. Cornyn and 99 other senators will soon cast their votes for, or against, the House bill. He said he plans to give the measure his approval if it meets strict criteria without compromising important priorities.  

“It is important to carefully consider the text of any such bill, as there are numerous factors that must be considered before enacting the proposed bill. The public interest in maintaining the free flow of information is certainly one of them.”