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Given his in-box of international and domestic problems, President Obama probably shouldn't spend too much time on journalism and media issues. So it's a good sign that the White House focus has shifted from the foolish feud with Fox News to a media issue that really matters: A national shield law to give adequate protection to journalists who face fines or imprisonment for not revealing their confidential sources.
If passed, federal judges could use the national shield law to stop subpoenas against journalists if a judge decides that the public's right to know transcends the government's desire to uncover a source. Already about three dozen states, including Minnesota, have some sort of shield law, but they are not applicable in federal proceedings. A national law is needed as well to protect the public's right to know.
The House passed its version of the bill in March, but the Senate Judiciary Committee is continuing to work on its version. A number of key issues have come into focus in the Senate. For civil cases, the burden of proof would be on the litigant seeking to subpoena a reporter. In criminal cases, the burden of proof would shift to a reporter. But the biggest compromise in the Senate has been over not compromising national security by, in effect, balancing the protection of sources with the need to protect the country.
"In a post-9/11 environment, there are legitimate concerns," said Prof. Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. "Journalists do not take that lightly, and there are plenty of examples of the New York Times and Washington Post consulting with the government when they get information before they go ahead and publish it to try to make an informed decision about whether it's really going to pose a genuine threat to national security or not."
The White House recognizes that there needs to be a balancing test in all national security cases unless there is an imminent threat, said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press. Although many of the high-profile cases that created the momentum for a shield law involved jailing journalists, a 2008 case went to new extremes.
Last year U.S. District Judge Reggie B. Walton threatened former USA Today reporter Toni Locy with daily fines of up to $5,000, which her employer could not cover on her behalf, if she refused to reveal her sources in the case of Steven Hatfill, who was suing the government after he was identified as a potential person of interest in the 2001 anthrax attacks.
As with any compromise, the current Senate Judiciary Committee version has flaws, which is just one of the possible reasons the bill was temporarily tabled last week. Unlike the House version, it doesn't offer protection for every type of subpoena. But the Senate version is an improvement over the House bill in that it has a much broader interpretation of who would be considered a journalist under the law. It's critical in today's rapidly evolving media landscape that most bloggers, book authors and freelance journalists be covered by the Senate's "function based" test, which is preferable over the House's "status test." The House version, for example, would have considered whether a journalist earned any income from reporting.
After decades debating a federal shield law, an essential protection for journalists and a free press is finally close to enactment. The Senate Judiciary Committee should act on the current bill or an improved version at its Nov. 19 meeting. Then the full Senate should act as quickly as possible and give Obama the chance to make good on his campaign promise to sign it into law.