Momentum for Federal Shield Law Has Slowed

WASHINGTON — Congressional efforts to draft a federal shield law to protect journalists from having to reveal confidential sources have run into stiff head winds.

White House national security concerns and a reluctance to legislate who is and isn't a journalist have stalled, for the moment, a bill that once appeared to be cruising toward passage.

After the bill passed in the House last fall in a 398-21 vote, its advocates had expected action before the Memorial Day recess.

"That's our goal," said Kevin Goldberg, counsel for the American Society of Newspaper Editors, a Reston, Va., trade organization representing 2,300 editors nationwide. "But we're running out of time ... it's going to be tough."

Sen. John Cornyn, R-Texas, was an early proponent of the bill, formally called the Free Flow of Information Act, aimed at protecting journalists from having to reveal their sources in court cases.

Cornyn still says reporters and editors need to operate within "a protected sphere of activity" but he's now balking at the notion that Congress might have to define who is - and is not - a journalist.

"That's offensive to me," said Cornyn, a former Texas state Supreme Court justice who majored in journalism at Trinity University in San Antonio before going to St. Mary's School of Law in the same city.

"I don't want people to say the government is, in fact, licensing journalists," Cornyn said in an interview.

On the other hand, he said, he can't support legislation that might give cover to a criminal or terrorist group, mining classified government information under the guise of journalism.

"I don't want some jihadist self-designated as a journalist," said Cornyn. "The question, in this sort of new era we're in, is who is a journalist?"

It's not an easy question to answer. There are more than 100 million so-called Weblogs, or blogs, on the Internet. As written, the federal shield law doesn't provide protection for all bloggers, said Goldberg, nor should it.

"It favors mainstream journalists - folks who work for papers, TV stations and radio stations," said Goldberg. "It needs to apply to certain folks who are only operating on the Web. The question is who?"

Every state in the union except Wyoming has addressed the issue of journalist protections, either in the courts or through state statutes. In legal cases, it is ultimately judges - not legislators - who decide whether someone is a journalist, said Paul Boyle, senior vice president for public policy for the ASNE.

"Who is a journalist? That's a question that the courts have to deal with every day, and have been for the last 100 years," said Boyle. "It comes up without any statutory definition."

In practice, said Boyle, judges will decide who is a journalist based on whether they are following the practices and processes that power the gathering and public dissemination of news.

The problem, said Goldberg, is that the lack of a federal shield law leaves reporters exposed to possible fines or jail time if they fail to reveal their sources under the order of a federal judge.

First Amendment protections go only so far, said Goldberg, as some courts have interpreted the provision as giving protection to reporters for publishing news but not protecting them from having to reveal their sources.

"There are so many stories we've seen over the last few years, and in the history of journalism, that started from a reporter talking to a confidential source and, in fact, that confidential source would not have spoken had they not been guaranteed confidentiality," said Goldberg. And yet, he said, "You've got this glaring hole in the framework for protection of journalists" at the federal level.

President Bush has not spoken to the shield legislation directly. Senior cabinet members, though, have been vocally opposed to it for months. They claim the House and Senate versions of the shield law would encourage leaks of classified information and make it difficult to prosecute bureaucrats and officials who break the law by disclosing top secret information.

"The intelligence community is concerned that these bills will undermine our ability to protect intelligence sources and methods and could seriously impede national security investigations," John McConnell, the director of national intelligence, wrote in a January letter to Senate Majority Leader Harry Reid, D-Nev., and Republican Leader Mitch McConnell, R-Ky.

The letter was also signed by FBI Director Robert Mueller, CIA Director Michael Hayden and nine other senior U.S. intelligence officials.

"Disclosures of classified information about military operations directly threaten the lives of military members and the success of current and future military operations," Secretary of Defense Robert Gates wrote in his own letter to Reid in March. "Such disclosures also threaten the lives and safety of American citizens and the welfare of the nation."

Last month, Treasury Secretary Henry Paulson added his voice to the rising chorus of administration dissent.

"The Department strongly opposes this proposed legislation, as it would seriously undermine the Treasury Department's programmatic efforts to fight terrorist and other forms of illicit finance and jeopardize our ability to review foreign investment for national security reasons," wrote Paulson.

The bill has also been formally opposed by the heads of the Justice Department, the Department of Homeland Security and the Department of Energy.

Cornyn said he hasn't discussed the matter with anyone at the White House and denies that he's been pressured by the administration to drop his support for the measure, despite the opposition of his fellow Texan, Bush.

"I don't feel any pressure at all," said Cornyn. "I'm trying to reach my own conclusion and trying to do what I think is best and, frankly, I don't much care what anybody else thinks."