SPECIAL REPORT:
Reporters and Federal Subpoenas

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As reporters facing contempt charges in a number of federal cases around the country, Congress is taking its first serious look at a reporter's shield law in decades.

This year is shaping up to be a critical year for the reporter's privilege. Both houses of congress are looking at shield law bills, the D.C. Circuit has found no privilege protects journalists before grand juries, and a Rhode Island journalist sits under home confinement for criminal contempt of court for not revealing a source. At least nine journalists face sanctions for refusing to obey court orders to reveal their sources and more may follow.

Federal shield law efforts

Identical bills in the House and Senate would both give journalists an absolute privilege in protecting the identities of confidential sources. H.R. 581 was sponsored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.). S. 340 was subsequently introduced by Sen. Richard Lugar (R-Ind.).

Sen. Chris Dodd (D-Conn.) has also introduced a reporter's shield bill (S. 369) -- while also signing on as a co-sponsor of the Lugar bill. Dodd had also introduced a bill late in the last congress, but no action was taken and so far Dodd has not reintroduced his bill in the current session.

What the bills say.

Pence (H.R. 581) and Lugar (S. 340) bills.

Confidential sources: Sources are protected by an absolute privilege -- meaning the right to keep the source's name can not be overcome by the subpoenaing party under any circumstances. Other information: protected by a qualified privilege -- subpoenaing parties can demand information from reporters if they show, by "clear and convincing evidence" and after giving the reporter "notice and an opportunity to be heard" in court, that they have unsuccessfully attempted to obtain the information "from all persons from which such testimony or document could reasonably be obtained" and (1) in criminal cases, that "(i) there are reasonable grounds to believe that a crime has occurred; and (ii) the testimony or document sought is essential to the investigation, prosecution, or defense" or (2) in other cases, that "the testimony or document sought is essential to a dispositive issue of substantial importance" to the case. Third party records: The bills protect journalists' third-party records, such as telephone records and e-mail, to the same extent as material held by journalists, and further requires that journalists be notified before such subpoenas are issued and be given an opportunity to contest them before the time the records must be turned over. Who is covered: The bills would cover publishers, broadcasters and wire services and those who work for them. The definition would include freelance journalists who are working for a publisher or broadcaster, but not those without contracts or those who publish solely on the Web. To quote the bill, ''covered person'' means:

(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that-

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;

or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

Dodd bill (S. 369)

Confidential sources: The bill would provide an absolute privilege from disclosing sources whether they are promised confidentiality or not. Other information: The bill would provide a limited or qualified privilege to withhold other information. The privilege could be overcome if a court "finds, after providing notice and an opportunity to be heard to the person or entity from whom the news or information is sought, that the party seeking the news or information established by clear and convincing evidence that - (1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Federal Government that has the power to issue a subpoena; (2) the news or information could not be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure." Who is covered: Here, the Dodd bill differs from the Pense-Lugar bills, and provides coverage to a wider class of journalists. The act applies to a "covered person who is providing or has provided services for the news media." A covered person is a person who "(A) engages in the gathering of news or information; and (B) has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public." News media is broadly defined as a newspaper, a magazine, a journal or other periodical, radio, television, press associations, news agencies, wire services, or "any printed, photographic, mechanical, or electronic means of disseminating news or information to the public." The last provision makes clear that Web-only news sites would be covered.

The Reporters' Committee For Freedom of the Press