Locking up the press - Page 2

Will Congress protect journalists — or pass a bill too weak to matter?

And it makes more difficult any challenge by the reporter, based on whether the information involved is "properly classified" or whether its disclosure would harm national security.

It also expands the list of exceptions for which protection would be precluded: if disclosure could prevent criminal activities, terrorism, kidnapping, or imminent death or bodily harm; identify a person who has released some categories of private business and medical information; and where reporters witness criminal or tortuous conduct.

"I can't overstate how much better the House bill is," Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, told the Guardian.

Although Dalglish is hopeful Senate Majority Leader Harry Reid (D-Nev.) will schedule the bill for a vote, she fears there won't be enough time for a conference committee to iron out the differences between the two bills before the end of September, which means that only one version will have a chance of passing into law.

"My guess is that it will be the Senate bill, because the House will pass the Senate bill in a heartbeat, but the Senate will never pass the House bill," Dalglish observed.

Reached on break from his reporter gig, Wolf voiced his opposition to the Senate bill. "A shield law riddled with holes is no shield at all," Wolf said.

"It boggles my mind that any journalist could support the bill the way it is written," said Wolf, who would like to see a common law reporter privilege similar to the one for psychiatrists and therapists. "This is a shield law, in which, as best as I can tell, every single federal contempt case is carved out as an exception," Wolf opined.

While Dalglish acknowledges that the Senate shield only addresses subpoenas that seek to identify confidential sources (about 20 percent of subpoenas), she believes the Chronicle's Williams and Fainaru-Wada would have been protected, as would Locy.

"But Josh [Wolf] would not have been covered because he was not protecting confidential sources, and Judith Miller would have had a shot, though her case would have a more difficult time because of national security implications," Dalglish said. "And while by far the most subpoenas don't have to do with confidential sources, they are the holy grail of journalism ethics, and you certainly have to, at a minimum, protect them — and the Senate bill is minimal."

Dalglish believes that both the Senate and House bills would allow the truthful, accurate, and independent gathering of information to go public, so the public could use this information at ballot boxes and in city halls, and ensure that people who have information to share could share it with reporters and the public.

"It's not about protecting reporters," Dalglish added. "Reporters are not that special, in any shape or form. It's about protecting the right of reporters to freely work on the public's behalf, without being viewed as agents of the US Attorney."

Noting that the law in the Senate is not going to change what happened to Wolf in that instance because he was not protecting a confidential source, Dalglish's message for reporters facing subpoenas, first and foremost, is: "Resist, tell them you don't have it.

"Your obligation is to be independent, not an agent of the government," he continued. "So take your video, put it on a Web site, and make sure the public gets to see it at same time as the US Attorney."