White House Toughens Its Stance on Journalist Shield Law

By Walter Pincus
Washington Post Staff Writer
Friday, October 2, 2009

The Obama administration has given Congress a draft of a proposed shield law that toughens its position on controversial national security sections, according to administration sources. The proposed law is designed to protect journalists from having to disclose their confidential sources.

Although some media sources called the draft a step backward that might kill the legislation, a White House official said Thursday that he expects negotiations to continue.

"It does not represent a fixed point," the official said, speaking on the condition of anonymity because he had not been authorized to speak publicly.

Media representatives who have reviewed the draft provided to them and Congress this week said the language came as a surprise, given President Obama's campaign pledge to support shield legislation.

"People are very disappointed . . . and baffled," said Paul J. Boyle, senior vice president of the Newspaper Association of America, which is among the organizations promoting the legislation. He said many of his colleagues in the media are concerned that the administration's shift "may represent an effort to kill the legislation."

Under the administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the sources' information "caused or [was] reasonably likely to cause significant and articulable harm to national security." In such cases, there would not be a "balancing test," in which a judge weighs the importance of the public having the information against the damage it could cause national security. The government would only have to show the judge, probably in a closed session, that the information was protected and "reasonably likely" to cause the damage.

The White House official pointed out that the judge could, on the basis of the government's presentation, decide that more information was needed. "It doesn't rule out there might be more of a role for balancing," he said.

Another element of the White House draft that drew attention from some in the media was language that would make it harder for journalists to protect their sources in civil cases in which no national security interests or criminal prosecutions are involved. It would lower the standard for someone seeking a reporter's source in a civil case, stipulating that all that is needed are "reasonable grounds to believe that the information sought is essential to the resolution of the matter."

Earlier drafts set a higher standard for that side of the balancing test in civil cases.

Kurt Wimmer, a lawyer with Covington & Burling who is advising the media groups, said Thursday that the civil case language "significantly" weakens protection against subpoenas in such cases and jeopardizes the potential benefits when a judge does conduct a balancing test.

Lucy Dalglish, director of the Reporters Committee for Freedom of the Press, said Thursday that the original civil protection language was important because of the recent increase in the number of privacy cases involving former government officials angered by unflattering stories about them leaked by their erstwhile bosses or colleagues. The result, she said, has been the issuing of subpoenas to reporters.

The White House official said he did not know whether the administration was responsible for the civil case language, noting that many drafts are being put together, on Capitol Hill and elsewhere.

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