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Senate Weighs New Shield Law
Reporters Would Have to Disclose Information in Special Cases

By Walter Pincus
Washington Post Staff Writer
Sunday, September 13, 2009

The Senate Judiciary Committee this week will take up a new version of a reporter shield law.

The bipartisan-backed legislation, which establishes a qualified privilege for reporters to withhold the names of confidential sources who provide information under promise of confidentiality, has been the subject of intensive lobbying by media companies for years. The companies were reacting to an increase in the number of subpoenas to reporters during the Bush administration, including the highly publicized case involving disclosure of the identity of Valerie Plame Wilson, a covert CIA officer.

Though a similar bill passed the House on March 31, as it had in 2007, the shield legislation has had trouble gaining traction in the Senate, due mainly to Republican opposition. Former president George W. Bush as well as the Justice Department under his administration also opposed the legislation.

During the presidential campaign, Barack Obama said he favored such legislation. Attorney General Eric H. Holder Jr., at his confirmation hearing, said a "carefully crafted [shield] law is appropriate." The Justice Department, however, has not taken a position on either the House-passed legislation or Senate drafts.

Questions Raised

While the House version passed easily by a voice vote, five senior Republicans on the House Judiciary Committee in their criticism of the measure questioned the amount of lobbying done by media companies to get the bill passed.

"We hear a lot from the media about the evils of lobbying and how Congress is captive to special interests, but media outlets, in a very self-serving way, are lobbying House Members to support H.R. 985 [the House shield law] or face the consequences," wrote GOP Reps. Lamar Smith (Texas), the ranking minority member; F. James Sensenbrenner Jr. (Wis.); Darrell E. Issa (Calif.); Steve King (Iowa) and Gregg Harper (Miss.). They called it "unseemly, and possibly unethical, to make phone calls and write editorials in support of this bill when the motive is so clearly one of self-interest."

The five Republicans said, "There is no way to quantify or report the value of a journalist's 'in-kind' contribution."

Broad Lobbying

A number of media companies and associations hired lobbyists to support the House bill, according to reports filed on Capitol Hill.

The Washington Post retained the Podesta Group, which in the first quarter of 2009 reported receiving $10,000 for its lobbying on the bill. The National Newspaper Association paid Heather Podesta & Associates $50,000 in the 2009 first quarter, and the American Society of Newspaper Editors spent less than $5,000 on lobbying in that period. Major corporations with television or print interests, such as News Corp., General Electric and Time Warner, reported lobbying expenditures in the millions, but the amounts spent on the shield law alone could not be determined.

Under the proposed Senate legislation, a reporter would not have to disclose confidential sources, or information obtained under a promise of confidentiality, except in circumstances involving criminal investigations or prosecutions, or in civil cases in which the identity of the source or the information obtained under a promise of confidentiality is "essential" to settling the matter. In both instances, either the government or the civil case litigant would have to exhaust all other reasonable measures before turning to the confidential sources.

In trying to meet objections that shielding reporters could affect specific criminal cases, the revised Senate bill added exceptions when a court determines that the information came from criminal conduct or from observing criminal conduct.

National Security

The House and Senate measures would not cover people who work as agents of foreign powers or are affiliated with government-named terrorist organizations. It would also bar coverage to those who provide aid to such groups.

When classified information is involved, the protection of the source or the information would require the government to show the materials were properly classified. Then a judge would have to find after an evidentiary hearing that their disclosure could cause significant harm to national security that would outweigh benefits to the public interest with its publication.

"This compromise accommodates both the need for Americans to be safe and the right of Americans to be free in a country with an unencumbered press," said Sen. Charles E. Schumer (D-N.Y.).

"We have come close to passing this bill in the past, and these changes should help us finally cross the finish line this Congress," said Sen. Arlen Specter (D-Pa.).

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