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Congress Debates Shield Legislation

Congress debated a shield law Thursday that would regulate journalists' relationships with their sources. The NewsHour talks to a legal expert and a former Justice Department official about the proposed legislation.

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  • 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.

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