Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

Media face a tough sell in gaining protection for confidential sources

Posted by David Kassel on October 23, 2007

Why has it been so hard to pass a media shield law at the federal level and in many states? 

A pretty convincing case can be made that the protection of confidential sources is essential in preserving the public’s right to know, as U.S. Rep. Mike Pence, a conservative Indiana Republican who has cosponsored a federal shield bill, put it.  Supporters of the federal shield bill have pointed to press reports on Abu Ghraib, clandestine CIA prisons, and shoddy conditions at Walter Reed Army Medical Center as examples where source confidentiality was essential in getting the stories.

Last week, the U.S. House of Representatives achieved a milestone in giving overwhelming support to the shield bill, which would back the right of reporters to protect confidential sources, subject to certain exceptions involving terrorism and national security.   But the measure, which passed by a vote of 398 to 21, faces an uncertain future in the Senate and has already encountered a veto threat from the White House.

The Reporters Committee for Freedom of the Press has noted that the case of Rhode Island television reporter Jim Taricani spurred efforts to enact shield laws in three New England states: Connecticut, Massachusetts and Vermont. Taricani, an investigative television reporter  in Providence, R.I., spent four months confined to his home in 2004 for refusing to disclose the confidential source of a leaked FBI videotape showing a government official taking a cash bribe.  Rhode Island is the only New England state with a shield law; but, according to the Reporters Committee, Taricani’s case arose in federal court, so the Rhode Island shield law did not apply to him.

According to the Reporters Commitee,  32 states and the District of Columbia already have shield laws and an additional 17 states have judicially crafted protections for journalists.  Massachusetts, often a leader in citizens rights legislation, is not among the states with shield laws.  A proposed shield law in Massachusetts appears to have been stuck in the Judiciary Committee since January, where the committee’s co-chairs have expressed skepticism about it.

 Part of the problem may have to do with the public’s growing lack of trust in virtually all  our institutions—not only in government, but in the media as well.  It may be that the public believes that the media have a hidden agenda (and I think this goes beyond suspicions of a liberal or conservative agenda to include a suspicion that the media are often in bed with government or business or both), and that reporters therefore don’t deserve any special protections.   New York Times reporter Judith Miller, for instance, was jailed, not because she was trying to protect the identity of government whistleblowers, but because she refused to identify confidential Bush administration sources who may have outed CIA agent Valerie Plame Wilson to her.  It was hard to work up a lot of sympathy for Miller in that case, even though she may well have been acting from purely journalistic motives in protecting those sources.

The fact is that the press has not covered itself in glory in recent years.  As press ownership becomes more and more monolithic and true competition among media outlets continues to dwindle, the public’s interest in a shield law may only grow dimmer.

Meanwhile, according to The Reporters Committee for Freedom of the Press, the federal shield bill would only protect professional journalists who regularly engage in journalism “for substantial financial gain” or a substantial part of their livelihood.  Under this definition, some, but not all, bloggers would receive protection from federal investigators. 

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