Media Shields Up!

By Justin Miller

While the stimulus debate consumes all attention, a bill to enhance journalists' rights has been introduced in Congress. A federal shield law to usually prevent journalists from having to divulge confidential sources was brought back to the House of Representatives on Thursday. The Free Flow of Information Act would create a shield law applicable in federal cases, like that of Judith Miller's in 2005. State shield laws do not apply in federal cases.

The bill was passed the House last year but failed to be picked up by the Senate. Even had it passed, President Bush said he would have vetoed the law that requires the government to demonstrate a "preponderance" of evidence to compel journalists to testify or produce documents. Then-attorney general Michael Mukasey argued that the law set the bar too high for federal prosecutors investigating illegal leaks of classified information.

However, the Obama administration seems more inclined to support the bill. Obama co-sponsored the failed Senate bill last year and Attorney General Holder said he's in favor of a shield law during his confirmation hearing.

It's not entirely clear whether bloggers would be covered by the law. The law protects those who are journalists, defined as those who gather, prepare, collect, photograph, read, write, edit, report or publish news for their "livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person."

The prosecution of a journalist in federal court isn't hypothetical: this week a Detroit Free Press reporter was threatened with contempt of court by a U.S. District judge for not revealing confidential sources within the Justice Department. A former federal prosecutor is suing DoJ for illegally leaking the fact he was under internal investigation. Reporter David Ashenfelter could face fines of $5,000 per day if he continues to hold out.

This article available online at:

http://www.theatlantic.com/politics/archive/2009/02/media-shields-up/588/