- The Washington Times - Thursday, September 10, 2009

A long-debated federal “shield” law to protect journalists who refuse to reveal their confidential sources is poised to move a little closer to passage Thursday.

The Senate Judiciary Committee plans a mark-up session with the shield law at the top of the agenda, a committee source told The Washington Times.

“It is very significant that this is the first bill on the agenda. That tends to indicate that it is in a position of priority,” the Senate aide said.

A federal shield law would grant journalists the right to refuse to reveal information they have obtained during the news-gathering process in certain legal proceedings - and ultimately would protect the public’s “right to know.”

Currently, 49 states have some form of common-law, statutory or rule-based protections for journalists - but there is no definitive federal legislation in place for those who choose not to reveal their sources in court. The House passed its version of the “Free Flow of Information Act” in March, but Senate action is needed for the bill to become law.

The aide said the bill enjoys strong support from Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, and a number of other members on the panel. Judiciary Committee members Sens. Arlen Specter, Pennsylvania Democrat; Amy Klobuchar, Minnesota Democrat; and Lindsey Graham, South Carolina Republican, are among the original co-sponsors of the bill.

“The bill is a priority for a lot of members - including the chairman,” the source said. “We could charge right through it, and there’s a chance it could spill over to another session. But it is a priority.”

The protections in the bill would be “similar to those afforded to lawyers and their clients, clergy and their penitents, and psychotherapists and their patients,” according to the Society of Professional Journalists, which has raised $30,000 in the past year to build support for the law.

But protecting whistleblowers in a post-Sept. 11 era of heightened national security has proved to be complicated.

Opponents of federal shield laws say they give journalists special rights not available to ordinary citizens and could undermine the power of court-ordered subpoenas to obtain information. Deciding who qualifies as a journalist protected by the shield law has also proven difficult.

Some officials in the George W. Bush administration argued that covert-intelligence and law-enforcement operations could be compromised by a federal shield law - and made their objections known to Senate leaders.

The bill has been slow in coming, with bipartisan forms of the legislation stalling in recent sessions of Congress.

Mr. Leahy has long been a champion of the legislation. Passage, he said in May, “will send a powerful signal to the entire world about this nations commitment to freedom of expression.”

Intense debates over the need for a federal shield law date back to the 1970s, with the arguments pitting the need to protect sources and promote open debate in the press against national-security and law-enforcement concerns. High-profile and heavily publicized cases of reporters jailed - or threatened with prosecution - put the legislation on the public’s radar.

Last year, a federal judge in California supported a reporter’s right to protect confidential sources, ruling in favor of The Washington Times’ national security reporter Bill Gertz on First Amendment grounds in a case involving suspected espionage by Chinese agents. USA Today reporter Toni Locy was driven to near-bankruptcy by legal fines for failing to disclose sources for an article on the 2001 anthrax attacks.

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