New hope for a federal shield law

It’s been a long slog, but reporters are now closer to getting some legal protection in cases involving confidential sources. A compromise bill in Congress would keep journalists from being jailed or fined for refusing to name a source in most circumstances if a federal judge determines the public interest in the news is paramount.

What’s really significant is the bill’s definition of who would be protected. Just a few weeks ago, the Obama administration was pushing to cover only salaried employees or independent contractors for a news organization, says media lawyer Kevin Goldberg. That would have cut out most student journalists and bloggers like Josh Wolf, who was jailed for a month in 2005 for refusing to hand over unaired video he shot at a protest. But the new proposal apparently extends coverage to anyone involved in gathering and disseminating news information, according to a statement from Sen. Arlen Specter.

It could still get tricky if the government alone gets to decide who is a journalist for the purposes of the law. But the compromise moves in the right direction by leaning toward what the lawyers call a functional test, based on what a person does, as opposed to a status test, based on who that person works for. That strikes me as a much more realistic approach in today’s media world.

According to the New York Times, the government could still force reporters to identify sources if prosecutors could show it would help prevent or mitigate a future terrorist attack or other future acts that are “likely to cause significant and articulable harm to national security.”

Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, is quoted as calling the compromise “a huge deal but…not a done deal.” It may not be everything journalism groups wanted, but it would at least give reporters a shot at protecting confidential sources in federal cases, something they don’t have now.

That’s crucial, because even journalists who work in one of the 36 states or the District of Columbia that has a shield law may find that a story they’re covering turns into a federal case. Just ask WJAR-TV’s Jim Taricani, who protected a source for a story about corruption at City Hall in Providence, RI, that led to federal racketeering charges. Refusing to name his source in federal court got him sentenced to six months of home confinement.

Here’s hoping the deal turns out to be real.

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