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Congress Debates Shield Legislation

October 4, 2007 at 6:15 PM EDT

JUDY WOODRUFF: Now, a debate over a new shield for journalists. Jeffrey Brown has our Media Unit look.

JEFFREY BROWN: In a number of high-profile cases in recent years, journalists have been in the news, not just reporting it, subpoenaed by federal judges and threatened with jail when they refused to name their confidential sources. That’s led to new calls for a so-called shield law, which would offer protections to reporters from having to reveal their sources in federal cases.

Today, the Senate Judiciary Committee passed the Free Flow of Information Act of 2007, which would provide limited privilege for reporters, with certain exceptions involving national security cases. The proposed legislation must still be voted on by the entire Senate. The House is working on a similar bill.

Thirty-three states have shield laws on their books. A number of others have at least some written protections for journalists.

The most prominent recent controversy involved public disclosure of CIA agent Valerie Plame. Rather than disclose her source, New York Times reporter Judith Miller spent 85 days in jail. In other cases: two reporters faced jail time for protecting a source in the so-called BALCO case involving the use of steroids by major athletes; and Wen Ho Lee, the atomic scientist once suspected of espionage, settled an invasion of privacy lawsuit against the government with five news organizations agreeing to pay a settlement to avoid contempt sanctions against their reporters.

Late last year, the U.S. Supreme Court refused to stop a federal prosecutor from reviewing the telephone records of two reporters for the New York Times. The records included confidential sources for a piece about how the government was planning to take action against two Islamic charities.

And just this week, Steven Hatfill, a former Army scientist and one-time suspect in the 2001 anthrax attacks, asked a federal judge to hold two reporters in contempt for refusing to name which government sources had leaked details about an ongoing investigation.

And we debate the issue now with Rachel Brand. Until July, she was assistant attorney general for legal policy at the Department of Justice. She testified before the House Judiciary Committee on the shield law in June.

And Lee Levine, a First Amendment lawyer in private practice, who has defended journalists in several of the recent cases we just cited. He’s also an adjunct professor at the Georgetown University Law Center.

Lee Levine, starting with you, what is the problem that a shield law is needed to address?

LEE LEVINE, First Amendment Lawyer: Well, as your piece just summarized, in the last five years, the world has really changed, from the perspective of working journalists. Before that, federal courts on a pretty consistent basis recognized that journalists had a privilege to protect the identities of their confidential sources. As a result, by and large, prosecutors and civil litigants never even really tried to get journalists to be compelled to divulge their sources.

But about five years ago, that started to change, and courts started to basically do an about-face and say that they didn’t have the power to extend that kind of privilege to reporters, that if there was going to be such a privilege, it had to come from Congress. The result of that has literally been a deluge of subpoenas issued to reporters over the last five years, an unprecedented number of reporters being held in contempt by judges in federal courts around the country, and journalists being fined and even sent to jail for protecting their sources and keeping their promises.

A recent shift in media law

JEFFREY BROWN: Let me stop you there. First of all, Rachel Brand, do you agree that the world changed a few years back with more cases like this?

RACHEL BRAND, Former Assistant Attorney General: Well, I think Lee must be referring to civil cases. My perspective, my focus has been on criminal cases and national security cases, and the Supreme Court held 35 years ago that reporters do not have a privilege that allows them to refuse to provide information to a grand jury in a criminal investigation.

Now, that holding has not resulted in a chilling of people coming forward to the press and disclosing information. You've seen -- just open the newspaper and you'll see leaks of classified information, other sorts of information all the time. So I don't think that a compelling need has been shown for this legislation, at least with respect to criminal investigations.

JEFFREY BROWN: From the law enforcement perspective, what was the problem that you see with the prospective shield law?

RACHEL BRAND: Well, there are two bills that are pending in Congress right now. The House bill is much worse than the Senate bill, but both bills would make it a lot harder to investigate certain types of national security cases, specifically cases involving leaks of classified information.

So it's difficult to investigate those types of cases, and oftentimes the reporter to whom the leak was made is the only person who knows who leaked the investigation. These two bills would require the government to go through lots of hoops they don't have to go through right now that would delay those investigations and, in some cases, make it impossible to pursue them altogether. So that's the problem.

JEFFREY BROWN: Your response on that?

LEE LEVINE: In my mind, the real issue that these shield laws address is the question of who decides. Who gets to make the decision whether or not in the national security context there is, in fact, a compelling need to get this information from journalists to force them to break their promises?

JEFFREY BROWN: You mean whether it's the federal prosecution...

LEE LEVINE: Or the courts.

JEFFREY BROWN: ... or the courts.

LEE LEVINE: And as Rachel knows, the Department of Justice has long had guidelines that are very similar to the standards stated in this legislation that it has bound itself to follow. All this legislation does is say, "We're going to let the courts take a look and see whether the Department of Justice is following its own guidelines in these kinds of cases."

And I think in a system of checks and balances like we're supposed to have, when we're talking about reporting, about matters of public concern that otherwise wouldn't be available but for these promises, that's a very reasonable measure to take.

Leaving decisions up to the courts

JEFFREY BROWN: Why not leave it to the courts to decide? These laws write in that the government would have to show there's no other ways to get the information. They'd have to show that there's some certain national security issues at stake, but it lets the courts decide that. Why not?

RACHEL BRAND: Well, as Lee said, the Department of Justice has bound itself to fairly stringent procedures for the last 35 years if the department wants to ask a reporter for source information. But the number of criminal subpoenas to reporters has actually declined in recent years, and DOJ has been quite disciplined in when it decides to pursue that kind of information.

So where you have a bill that would make it harder for DOJ to investigate important national security cases, the burden is really on Congress to demonstrate why it needs to legislate there. And there's just no need for it. It's been working quite well, at least from the criminal context.

JEFFREY BROWN: But, again, I mean, why not just leave it to the courts to make that determination?

RACHEL BRAND: Well, when DOJ imposes the procedures on itself, it can go through the measures it needs to go through very quickly. If you have to go to court, it makes it -- it's much harder to...

RACHEL BRAND: Right, exactly. So you may have a case where a witness has disappeared or evidence has disappeared. You have to be able to do things very quickly in national security investigations.

JEFFREY BROWN: One of the other issues that's been raised here is the issue of, who is a journalist? Who qualifies under this? Is that a problem in the shield law legislation?

RACHEL BRAND: The definitions in both the bills are very broad. And, frankly, it's difficult to come up with a definition that isn't too narrow and that would cause constitutional problems and that isn't too broad in that it would allow pretty much anyone to be a journalist.

So the Senate bill has an exception for people who are agents of foreign powers or people who are part of a designated foreign terrorist organization. But there are lots of other sorts of terrorists or spies who might set up a Web site and call themselves a journalist who would fit within the bill's definition of journalist.

JEFFREY BROWN: You think it's easy for the courts to decide?

LEE LEVINE: I think it's a false issue, for two reasons. One is the legislation adopts a functional approach, both versions. They're slightly different, but they adopt a functional approach that basically says people who are engaged in the regular act of journalism, the regular practice of gathering information and reporting it to the public about public matters.

Courts have for decades, even centuries, I would say -- even more than a century, I would say -- in virtually identical legislation that has been passed in many, many states wrestled with the issue of who's a journalist under the definitions supplied in those state statutes. And they've had no difficulty drawing the line in a reasonable, intelligent way. I don't think it would come out any differently under this legislation.

The effects of a limited shield law

JEFFREY BROWN: This is a limited shield, I think, by everybody's definition, an attempt, clear here, to balance these two strong institutional values, correct? Do you see, looking forward, even if it passes, cases that or stories that might not be written or that still might be problematic, in terms of whether the government can try to get the sources?

LEE LEVINE: Oh, yes. You know, I think that journalists would like to see more, would like to see a more protective piece of legislation. But we can't let the perfect be the enemy of the good in this circumstance.

We need reporters and the public needs for reporters to have the kind of protection that this legislation advances. And, as I said before, in most ways this legislation simply mirrors and codifies the DOJ's own guidelines. So it would permit, it would lead to a significant step forward from where we are right now.

JEFFREY BROWN: Of course, as Ms. Brand said before, this hasn't stopped many cases, if you pick up your paper -- I mean, many stories from still being written.

LEE LEVINE: Well, you know, you never know what you don't see on your television screen and what you don't read in your newspaper. All I can tell you is that one of the unhappy consequences of the recent litigation over reporters and their sources have been a number of reporters who have had to testify under oath about why they were willing to go into contempt and why they were willing to go into jail.

And if you read that testimony, you will hear about stories that weren't written, about sources that wouldn't come forward because they were afraid that their identities would be revealed. And that's a great loss.

JEFFREY BROWN: And briefly, Ms. Brand?

RACHEL BRAND: Lee says the bill would just codify the DOJ procedures, but it would require the department to go to court and provide the court with even more classified information to show why the leak was damaging. And so that's very different from what occurs now. Not only would it prevent us from being able to pursue classified leak cases, but it would make a leak even more damaging than it already had been.

JEFFREY BROWN: All right, Rachel Brand and Lee Levine, thank you very much.

LEE LEVINE: Thank you.