Members Push Journalist Shield

Recent Cases Give Momentum to Bipartisan Legislation

Posted July 1, 2005 at 6:31pm

With several journalists facing federal subpoenas and possible jail time over their refusal to name confidential sources, a House bill aimed at allowing reporters to protect their sources in most circumstances appears to be gaining some steam, though a similar Senate measure could be in trouble.

“From colleagues to leadership, there’s been more interest,” said Rep. Mike Pence (R-Ind.), the primary author of the “shield” measure. “I have sensed an upsurge in awareness that we have a problem.”

Pence said he’s optimistic that his talks with House Judiciary Chairman Jim Sensenbrenner (R-Wis.) will result in the panel holding a hearing on the measure in the near future.

But Sen. Frank Lautenberg (D-N.J.) tried unsuccessfully on Thursday to get Senate approval for a non-binding resolution decrying the potential imprisonment of two reporters who have so far refused to identify their sources to a federal prosecutor investigating the possibly illegal leak of a CIA operative’s name.

Several Republican Senators refused to allow the resolution to pass by unanimous consent, said Lautenberg’s spokesman, Alex Formuzis.

“We don’t know who they are or why they did it,” Formuzis said of the Republican “holds.” Lautenberg is one of 10 co-sponsors of a bill sponsored by Sen. Dick Lugar (R-Ind.) that is identical to the Pence measure.

Pence said he expects some resistance to the notion that reporters should be able to protect their sources, particularly from Members who served as federal prosecutors in the past. Still, he said he hopes that he will be able to make small changes to the legislation that might satisfy detractors.

“In order for legislation to be taken up and considered, it must be a bipartisan consensus bill with no opposition or very, very narrow opposition,” said Sensenbrenner spokesman Jeff Lundgreen.

Sensenbrenner, along with the Justice Department, would like the bill to clarify that it would not apply in cases in which classified government information has been leaked illegally, according to Pence and his chief Democratic co-sponsor, Rep. Rick Boucher (Va.).

“The under-the-radar activity on this bill has been very intense,” said Pence.

He added that increased interest in his bill came last month from the revelation that former FBI official Mark Felt is “Deep Throat,” the source who helped Washington Post reporters Bob Woodward and Carl Bernstein unravel the Watergate scandal.

“We harnessed the energy behind the Deep Throat revelation,” said Pence. Indeed, he attracted nine new co-sponsors after Deep Throat was unmasked.

But Pence expects even more co-sponsors to sign on now that the U.S. Supreme Court has ruled that the two reporters in the CIA leak case must submit to questioning. Continued refusals could cause a federal judge to send them to jail this week.

In addition, four more reporters were subpoenaed last week to provide source information in a civil case being brought by Wen Ho Lee, a Los Alamos National Laboratory employee who claims illegal government leaks identified him as a suspected spy and ruined his reputation.

Because of those recent cases, Pence said that now is the time to give the journalist-source relationship the same protection that exists for doctors and patients as well as lawyers and clients.

“This is not about protecting reporters. This is about protecting the public’s right to know,” he said.

Pence said the current legal atmosphere that reporters face may make some government whistle-blowers less likely to come forward, because they fear journalists will be compelled to name them in court.

“The Founding Fathers distrusted government power, and they knew that the only check on government power is a free and independent press,” said Pence.

Pence and Boucher already have 40 co-sponsors who run the ideological spectrum, from conservatives like Pence and Rep. Jeff Flake (R-Ariz.) to moderates like Rep. Fred Upton (Mich.) and Rep. Stephanie Herseth (D-S.D.) and partisan stalwarts like Democratic Congressional Campaign Committee Chairman Rahm Emanuel (Ill.).

House Majority Whip Roy Blunt (R-Mo.) is also a co-sponsor of the bill, perhaps increasing its chances of passing the House this session.

Meanwhile, Lugar will likely let the House move on the bill first, according to his spokesman, Andy Fisher. Still, Lugar is actively drumming up support in the Senate for his bill, Fisher added.

“There are a lot of possibilities for it to pass this session,” said Fisher.

The bills would forbid federal prosecutors and courts from compelling news outlets and journalists to testify or produce documents unless the government has exhausted all other avenues to obtain such information. The measure also would bar courts from forcing journalists to reveal anonymous sources or any information that would lead to the discovery of a source’s identity.

The measure sets out different thresholds for civil and criminal cases, but in all cases, reporters could not be forced to testify unless lawyers had corroborative information from a non-journalist.

The measure would not retroactively affect reporters in the CIA leak case or the Wen Ho Lee case. Thirty-one states and the District of Columbia have “shield laws” giving reporters some protection from prosecutorial inquiries.