Senate committee gives boost to bill to protect journalists’ sources in federal court

By Larry Margasak, AP
Thursday, December 10, 2009

Bill protecting journalists’ sources gets boost

WASHINGTON — A bill to protect reporters’ confidential sources in federal court cleared the Senate Judiciary Committee on Thursday, ending months of stalemate.

The panel sent the so-called media shield bill to the full Senate on a 14-5 vote, but it’s not certain it will become law this year. Even if the Senate acts, the legislation would have to be reconciled with a different version approved earlier by the House.

The bill does not give journalists absolute authority to protect sources. Those rights can be overridden in national security cases.

The legislation has broad support from journalism organizations and is a compromise worked out by senators, the intelligence community and the Obama administration.

“After years of debate and countless cases of reporters being held in contempt, fined and even jailed for honoring their professional commitment not to publicly reveal their sources, the time has come to enact a balanced federal shield law,” said the committee chairman, Patrick Leahy, D-Vt.

Conservative Republicans and some in the intelligence community believe it can harm attempts to track down leakers of classified national security information.

The ranking Republican on the committee, Sen. Jeff Sessions of Alabama, said the bill “goes beyond protection for journalists. It’s granting journalists a power that is not provided to other people” who possess important information.

The bill uses a broad definition of journalists by including bloggers, citizen journalists and freelancers. It also relies on court tests to determine whether sources deserve protection.

With the exception of national security cases, the bill establishes a balancing test to determine whether a reporter must reveal their source. A federal judge would weigh the public’s right to know versus national security claims made by the government.

The balancing test would be eliminated in cases where classified information is leaked. However, the government would have to demonstrate that a source’s identity is necessary to prevent, or lessen the impact, of a terrorist act or prevent substantial harm to national security.

The government would have to provide specific facts to show possible harm. It could not make a national security claim and then withhold most of the details.

When the balancing test is used in criminal cases, the journalist would have to show that guarding the anonymity of sources is in the public interest.

In non-criminal cases, the government would have to demonstrate that compelling disclosure of a confidential source outweighs the public interest in newsgathering. There also is an exception to the protection if prosecutors can convince a judge that disclosure would stop an imminent sexual crime against a child.

Protections in the bill apply not only to information held directly by reporters, but also to reporter information such as phone and e-mail records held by third-party service providers.

Nearly all states have either their own media shield laws or court cases establishing the protection.

Sen. Arlen Specter, D-Pa., said it has been “a long time coming” for legislation that protects “the public interest, journalists, the news media, bloggers, prosecutors and litigants.”

Sen. Charles Schumer, D-N.Y., said that months of negotiations produced “the right balance” between national security and the public’s right to know.

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