WASHINGTON – Supporters of legislation to protect reporters from being compelled to name confidential sources are claiming new momentum after a recent surprise vote in the GOP-controlled House and in advance of a possible Senate debate this summer.
Last week's 225-183 House vote came on an amendment by Rep. Alan Grayson, D-Fla., that would block the Justice Department from compelling journalists from testifying about confidential information or sources. Grayson won over 53 Republicans despite opposition from Judiciary Committee Chairman Bob Goodlatte, R-Va., who supports the concept of a reporter shield law but deemed Grayson's version overly broad.
"It is completely incongruous to say we have freedom of the press but the federal government can subpoena your sources and put them and you in prison – you – if you don't comply," Grayson said. Forty-eight states have some form of a shield law.
On Monday the Supreme Court declined to intervene in the case of New York Times reporter James Risen, who has been subpoenaed and could go to jail for not revealing the source of classified information for a book that detailed the CIA's efforts against Iran's nuclear program. A federal appeals court has held that the First Amendment does not protect reporters from revealing who gave them unauthorized information.
Grayson won support from 53 Republicans and most Democrats. And last week's House tally surely understated the depth of support for the idea in the House since supporters of the idea of a shield law voted no because they didn't think it should be attached to an appropriations bill. "This is not something to put on an appropriations bill at 10:30 at night," said Rep. Frank Wolf, R-Va.
The version approved by the House as part of a spending bill funding the Justice Department was broadly worded in order to stay within the arcane rules governing what qualifies as a germane amendment to an appropriations bill. It did not attempt to define who qualifies as a journalist.
The Senate Judiciary Committee approved a narrower version last year by a 13-5 vote and top bill sponsor Charles Schumer, D-N.Y., is confident the measure would pass with a filibuster-proof 60 votes if awarded floor time this summer. Top panel Republican Charles Grassley of Iowa and former chairman Orrin Hatch, R-Utah, support the legislation. Schumer defines a journalist as an employee, independent contractor or agent of an entity that disseminates news or information and limits such organizations to traditional and online media, drawing the line at Twitter, blogs or other social media websites by non-journalists.
Schumer's bill would protect reporters and news media organizations from being required to reveal the identities of confidential sources, but it does not grant an absolute privilege to journalists. It makes clear that before the government asks a news organization to divulge sources, it first must go to a judge, who would supervise any subpoenas or court orders for information.
The Obama administration has said it supports the concept of a shield law but has also been aggressive in going after government leakers. Last year the Justice Department had secretly subpoenaed almost two months' worth of telephone records for 21 phone lines used by reporters and editors for The Associated Press and secretly used a search warrant to obtain some emails of a Fox News journalist.
The Justice Department took the actions in looking into leaks of classified information to the news organizations.
In the AP story that triggered one of the leak probes, the news organization reported that U.S. intelligence had learned that al-Qaida's Yemen branch hoped to launch a spectacular attack using a new, nearly undetectable bomb aboard a U.S.-bound airliner around the anniversary of Osama bin Laden's death.
In the Fox News story, reporter James Rosen reported that U.S. intelligence officials had warned Obama and senior U.S. officials that North Korea would respond to a U.N. Security Council resolution condemning nuclear tests with another nuclear test.
Earlier this year, the Justice Department announced it was revising its rules for obtaining records from the news media in leak investigations, promising that in most instances, the government will notify news organizations beforehand of its intention to do so.
Goodlatte says the House Judiciary Committee, which has approved shield legislation in the past, will continue to work on the matter.