Reporters' shield bill:Read before salivating

In its lead editorial today, the Erie Times-News once again demonstrated its terminal political naivete when it cheerily huzzaed the bill passed in the U.S. House of Representatives today dealing with a reporter’s federal shield law, calling it a “great victory.” Though it gives that illusion, it’s nothing of the sort. And it still has to get through a hostile Senate. Before Times-News editors salivate over passage of any bill, they ought to read it first.

It’s not until the fourth paragraph that the editorial acknowledges the bill would only give reporters a “qualified” privilege, as opposed to an absolute privilege barring the federal government from forcing them to reveal their sources’ identities. That’s just the tip of the iceberg.

As I pointed out in an earlier blog (To shield or not to shield, Oct. 15, 2007), any bill that passes Congress will be so loaded with loopholes and exceptions it will be virtually toothless. And so it is. Without them, the so-called “Free Flow of Information” bill would never have passed the House.

The Times-News editorial concedes that “Reporters would have to testify in some circumstances. For example, they could be compelled to testify if it is deemed needed to prevent a terrorist attack or ‘significant and specified harm’ to national security.” But there are other equally significant exceptions the editorial doesn’t mention.

For example, under the bill reporters would be required to disclose a source of information if knowledge of the information would prevent imminent death or significant bodily harm; or to identify a source who has revealed trade secrets or information involving personal medical or financial records.

In addition, it allows judges to “consider the public interest” in forcing disclosure in ALL cases involving leaks that could be harmful to national security, not just criminal cases.

These are just House exceptions. It’s certain the Senate will add many others before the bill goes to the floor of the Senate for a vote, if it does. If it passes the Senate – a big IF - the bill almost certainly will have been further defanged there, then referred to a joint House-Senate conference committee to resolve any differences between the two versions, then back to the floors of the House and Senate for another vote.

That gives the Bush administration, which opposes the bill in almost any form that might prove useful to the press, plenty of time to twist enough congressional arms to defeat it, or in the alternative, veto it, as President Bush has said he would.

The Times-News editorial cites as an example of those who would be protected under the proposed legislation the “high profile” case of New York Times Reporter Judith Miller. The editorial says “She spent 85 days in jail in 2005 for rebuffing efforts to force her to identify sources in the CIA leak case involving Valerie Plame.” This is incorrect.

In fact, Miller would NOT have been protected if the pending legislation had been law at the time, because she would have fallen under the terrorist and national security exception cited above. Moreover, Miller was not jailed because she, along with several other journalists, refused to identify her source for outing Plame, as wrongly stated by the Times-News, but because she refused to testify before a federal grand jury.

And Miller’s source, Scooter Libbey, Vice President Cheney’s chief of staff, who had leaked the information outing Plame as a U.S. spy, had released Miller and other reporters from their vow of confidentiality to him. But Miller chose to defy the grand jury anyway and was jailed for contempt. Was she show-boating? I think so.

The Times-News editorial further states: “But prosecutors, criminal defendants or civil litigants would have to prove they had exhausted all other means of getting the information before demanding a reporter testify or reveal a source. That is significant.” It’s significant, all right, but it’s already the law and the practice in most cases.

Now consider the political realities. The Times-News editorial makes a big deal of the fact that the bill passed the House “by an overwhelming 398 -21 margin” No surprise there. It’s apple pie and motherhood. Most representatives voted for it on its first floor vote because they know it’s unlikely to pass the Senate, yet they can say for the record they voted for it, thus endearing themselves to the press and those gullible members of the public who have been falsely persuaded it’s in the public interest.