Will Congress protect journalists or pass a bill too weak to matter?
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On Aug. 20 the San Francisco Chronicle reported that video blogger Josh Wolf, who spent 226 days in federal prison in 2006 for refusing to testify before a grand jury and hand over his video of a protest turned violent, had begun working as a reporter with the Palo Alto Daily Post.
"Video blogger gets job as 'real journalist,'<0x2009>" crowed the headline.
The article noted that some critics believe Wolf was a protest participant and not an impartial news gatherer, and accurately observed that his case fueled the debates over what defines a reporter and who deserves to be protected by the reporter's privilege to protect confidential sources.
But it failed to mention that one of Wolf's harshest critics was Chronicle columnist Debra Saunders, nor did it clarify that in recent years several federal courts have found that reporters all reporters, even from major newspapers can be forced to testify before grand juries.
California doesn't allow its courts to compel journalists to reveal unpublished information, but the federal government has no such shield law. That's why prosecutors could jail New York Times reporter Judith Miller, charge Chronicle reporters Lance Williams and Mark Fainaru-Wada with contempt, and slap USA Today's Toni Locy with hefty fines all for refusing to disclose confidential sources and materials.
And as reporters continue to face contempt charges in federal court cases nationwide, Congress has been considering two very different versions of a federal shield bill.
These two versions take widely varying approaches toward who and what is protected. And thanks to Senate Republicans, who blocked all business not related to energy legislation before Congress' August recess, a vote on the Senate bill did not occur at the end of July.
As a result, if the Senate doesn't act by the end of September, both versions of the federal shield will likely die. And, depending on whom you talk to, that may or may not be a good thing.
The Free Flow of Information Act of 2007 (HR 2102), which the House of Representatives passed in October of that year, only protects journalists if their work is done for a substantial portion of the person's livelihood or for substantial financial gain. In other words, no protection for Wolf, for most bloggers, or for many freelancers.
The good news is that the House bill extends protections to any documents or information obtained during the newsgathering process.
By comparison, the Senate bill (S 2035) only protects the identity of confidential sources, and any records, data, documents, or information obtained under a promise of confidentiality.
The Senate shield would cover any journalist who "engages in the regular 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."
But it no longer requires the government to prove by preponderance of evidence that the information it seeks is essential, or that it has exhausted all other methods. 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."