Shield Law Supporters Optimistic on Bill's Passage in 2006

By: Joe Strupp After a busy week for proponents of a Federal shield law, which included high-profile testimony from embattled reporter Judith Miller before the Senate Judiciary Committee last Wednesday, the bill's future is still uncertain.

Although backers are optimistic that the legislation, which would give reporters source confidentiality protection in federal courts, could be passed in the next year or so, a true measure of support for it remains unknown. Only 74 members of Congress have signed up to co-sponsor the bill, according to The New York Times, while the Justice Department came out staunchly against it during last week's hearings.

"It's hard to say at this point," said Andy Fisher, a spokesman for Sen. Richard Lugar, R-Indiana, who sponsored the Senate version. "They [the Justice Department] may have objections that will be cleared up."

The push for a shield law has gotten increased attention in recent years, with numerous cases involving reporters being subpoenaed to testify about confidential sources. The most well-known example is the Valerie Plame probe, in which federal investigators are trying to determine who leaked the identity of Plame, a former CIA agent, to reporters.

Several reporters were subpoenaed in that case, including Miller of The New York Times, who spent 85 days in jail this summer for refusing to reveal her source. Miller finally testified before the grand jury after receiving a personal waiver from her source, Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff.

Currently, 32 states have local shield laws, while another 17 provide similar protection through court precedents. But no such protection exists in the federal courts.

Supporters of the bill admit that it will not likely get much movement before the end of the year, given Congress's attention on upcoming Supreme Court hearings. But some believe it can get a fair shot as soon as 2006.

"We are still hopeful for next year," said David Carlson, president of the Society of Professional Journalists, which also gave the law some attention during its annual convention last week in Las Vegas. "I think people realize that almost anything is better than what we have right now."

George Freeman, assistant general counsel for the Times, agreed that the bill's passage has more support than ever, although he admitted it may have to wait several months. Still, he stressed the notice the issue has gotten in recent months, which has given it more publicity than ever before. "A reporter being sentenced for 85 days dramatized the need for a shield law," he said. "It was beneficial for Judy to testify."

Freeman also pointed to other benefits of the Congressional hearing, including Judiciary Committee Chairman Sen. Arlen Specter's apparently positive comments about the law. "The senators on the judiciary committee who have been through two hearings on this sense the need for protection for journalists," he said. "I don't think this is a Republican or Democratic issue. All congressmen have been confidential sources at one time or another so they understand the need for this bill."

But when asked when the legislation might reach a final approval, Freeman said, "I have no idea." Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, also showed optimism, but agreed that any action would not come soon. "My sense is that Arlen Specter wants to get something done," she told E&P. "But it is not the most urgent thing on his plate."

Congressman Mike Pence, R-Indiana, the House sponsor of the proposal, said he also had seen more support that could carry the bill through to success. "In just the last year, I have sensed a shift in the wind," Pence told E&P. "Members of Congress were saddened at the specter of having an American journalist behind bars. There is a window of opportunity."

Still, Pence acknowledged the opposition from the Justice Department, which could be seen as an indicator of President George W. Bush's opposition. "It was not lost on me that the Justice Department announced its opposition," Pence said. "We're sensing that and we have meetings planned with them in the future."

Both versions of the legislation remain in the respective House and Senate judiciary committees, with no plans for further hearings scheduled.