04/19/2005

Reporters need federal shield law to protect sources, journalists say

By BETH FOUHY
Associated Press Writer

SAN FRANCISCO (AP) -- A new federal shield law must be enacted to defend reporters' right to protect their confidential sources, a panel of journalists said Tuesday.

The presentation at the annual meeting of the Newspaper Association of America came as one of the panelists, New York Times Senior Writer Judith Miller, lost a key court battle over her refusal to testify about conversations she had had with government officials about the identity of an undercover CIA agent.

Miller and the other panelists, including Associated Press Chief Executive Tom Curley, New York Times Chairman and Publisher Arthur O. Sulzberger, Jr., and Salon.com Editor in Chief Joan Walsh, warned publishers of the myriad legal threats facing reporters.

Thirty-one states and the District of Columbia have shield laws that give journalists the right to protect the confidentiality of their sources. But without a federal shield law, Miller and Time Magazine's Matthew Cooper face up to 18 months in prison for contempt of court after refusing to testify about conversations they had regarding Valerie Plame, an undercover CIA agent whose identity was disclosed by syndicated columnist Robert Novak.

Miller and Cooper's sole remaining appeal is before the U.S. Supreme Court.

"What's at stake here is the public's right to know," Miller said. "I can't work in the area of national security and intelligence, covering terrorism, unless people who are not authorized to speak to me feel that they can come to me and tell me things. ... It's at the heart of investigative reporting, it's at the heart of national security reporting, and it's at the heart of what we do as journalists."

Sulzberger said The New York Times is committed to taking the case to the Supreme Court, although without a federal shield law, the justices may take a dim view of the media's position.

"We have an uphill fight here, but we need to take this on," said Sulzberger, whose father's decision to publish articles in the Times about the leaked Pentagon Papers 30 years ago led directly to a precedent-setting Supreme Court decision that expanded press freedoms.

Bruce Sanford, a media lawyer who moderated the panel, told the audience that federal protection of journalists and their sources had been severely weakened since Judge Richard Posner of 7th U.S. Circuit Court of Appeals ruled in 2003 that subpoenas to journalists should be judged on the same merits as subpoenas to anyone else. The ruling contradicted a long-established belief that reporters are entitled to certain special First Amendment protections, and invited other federal courts to re-examine First Amendment law.

"During the past two years, 30 years of well-recognized law conferring a constitutional protection upon reporters to protect their sources from unnecessary disclosure have evaporated with a series of court decisions," Sanford said.

Courts would have to determine whether a federal shield law would cover online journalists, bloggers and other nontraditional media, the panelists agreed. And they said it remained important for news organizations to push reporters to get as many sources as possible to reveal their identity, thus maintaining greater trust and credibility with readers.

"Right now The Associated Press reporters have total discretion, and it's up to them to decide whether to offer someone the promise of confidentiality and risk going to jail for that," Curley said. "But I must say, I'm thinking about doing something that would send a stronger message, especially to Washington. ... Too much of going off the record and giving people the right to confidentiality is occurring without people thinking of the consequences."

Curley also said he hoped a time would come when reporters would "have the courage to stand up and walk the hell out of the room" when Washington officials offered "background" briefings to reporters.

The federal shield law being considered by Congress would set national standards to determine when federal officials can subpoena journalists in any federal criminal or civil case. It also protects reporters from being forced to reveal their sources.