Panel to debate Federal Shield Law

By Drew Kerr
University of Iowa
Those who will be featured in SPJ’s Showcase Panel call a federal shield law everything from essential to unnecessary.
The debate, which will come to the fore at Saturday’s 8:30 a.m. showcase panel, “Going to the Mat: The Need, Pros and Cons of a Federal Shield Law,” comes in the midst of several federal cases where journalists are being asked to reveal their sources and as legislation on the topic awaits debate in the U.S. Senate.
At issue is whether or not journalists should be protected when withholding information from federal prosecutors who argue they need journalists’ testimony, tapes or notes in order to make their case.
“In our case, finding out who made the statements to reporters was an essential part of our investigation,” said Jim Fleissner, the Special Assistant U.S. Attorney and Deputy Special Counsel in the investigation into the source who disclosed CIA operative Valerie Plame’s attorney.
“Although people like to talk about the flood of subpoenaed reporters, the number is not that substantial,” Fleissner said, defending parameters set by the Department of Justice in order to subpoena a reporter.
Fleissner, who continues to work on the case, will likely be a lonely voice in opposition to a federal shield law as he sits on a panel that includes an editor for The Chicago Tribune and other media counsel.
Panelists in favor of the federal shield law — which could give journalists the same protection as clergy, lawyers and psychotherapists — say the absence of protection stymies the free flow of information and keeps sources from passing important stories onto reporters.
Beyond protecting the next Deep Throat, a federal shield law could also clear up inconsistencies between state and federal law and allow independent judges to say when information is vital to federal prosecutors rather than the Department of Justice, said Mark Bailen, a partner for Baker & Hostetler, which serves as legal counsel to SPJ.
“The ultimate arbitrator is the Department (of Justice) itself,” Bailen said. “We think it’s important that an independent judgment be made. And that’s what a federal shield law would require.”
But some worry that a federal shield law would force judges and lawmakers to determine just who is and who is not considered a journalist, a situation that could potentially leave unpublished or freelance journalists uncovered.
“We have this whole cadre of citizen journalists that could not be covered,” said Wendy Hoke, the outgoing chairwoman of SPJ’s National Freelance Committee and a freelance writer from Cleveland.
The case of Joshua Wolf, which hinges on whether or not the 24-year-old freelancer will have to turn over to federal prosecutors the video he took at a rally where protestors attempted to scorch a San Francisco police car, is one example, she said.
Wolf, who is getting $31,000 in financial support from SPJ’s Legal Defense Fund, is currently in jail for refusing to hand over the tapes.
The Free Flow of Information Act, introduced in May by a set of bi-partisan U.S. Senators, represents the latest effort at the federal level to afford reporters some level of privilege.
SPJ has endorsed the legislation, but there are some flaws in its language, some say.
Panelist Debbie Berman, co-chairwoman of the Chicago firm Jenner & Block — which has represented reporters and television stations in these types of cases — said one of the major blemishes in the currently proposed Senate legislation is a national security exception that would compel reporters to forfeit information if the government could make the case that the public is at risk.
“Right now that exception is so big you could drive a truck through it,” Berman said. “It could be a disaster.”