White House, Senate Strike Balance on Reporter Protections

By: JIM ABRAMS Senate supporters of a bill protecting a reporter's right to protect confidential sources in federal court said Friday they've reached a compromise with the Obama administration and media groups that gives the government authority to override those rights in certain national security cases.

Sen. Charles Schumer, D-N.Y., said the agreement "strikes the right balance between national security concerns and the public's right to know." He said it would preserve a strong protection for reporters trying to protect sources while making sure the government can do its job of protecting citizens.

The Senate Judiciary Committee could take up the altered legislation next week.

The House passed its version of a media shield bill last March, but the measure has stalled in the Senate and took a step back last month when the administration unexpectedly sought to broaden government authority to compel testimony.

Schumer met with Attorney General Eric Holder last month to try to find common ground, Schumer's office said.

The original bill centered on the idea that a balancing test should be applied under which a federal judge would weigh the public's right to know versus national security claims made by the government. The administration wanted to eliminate that balancing test in many cases involving terrorism and other security cases.

Under the compromise, the balancing test would be eliminated in classified leak cases where the government can show that disclosure of a source's identity is necessary to prevent or mitigate an act of terrorism or substantial harm to the national security. But the government would also have to provide specific facts: it could not make a national security claim and then withhold most of the details.

The balancing test would be in order for cases not involving classified leaks, but in criminal cases the burden would be on the journalist to show clear and convincing evidence that guarding the anonymity of sources is in the public interest.

In non-criminal cases the government would bear the burden in proving that compelling the divulging of a confidential source outweighs the public interest in newsgathering.

"The negotiated compromise creates a fair standard to protect the public interest, journalists, the news media, bloggers, prosecutors and litigants," said Sen. Arlen Specter, D-Pa., a cosponsor of the Free Flow of Information Act.

The revised bill would also extend protections for freelance or citizen journalists by defining a journalist by the nature of activity engaged in rather than by the organization that employs the reporter.

The administration, in negotiating the agreement, said it backed legislation that protects the confidentiality of reporter sources unless there is a security risk. It said that Obama backed shield legislation as a presidential candidate and his administration was the first in history to support such legislation.

Media shield legislation has been supported by more than 70 journalism organizations including The Associated Press. It would apply only to federal courts and leave intact state protections for journalists and their sources.