HARPER: Mixed feelings as Congress weighs media shield law

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ANALYSIS/OPINION:

It took the Senate Judiciary Committee 837 words to define a journalist.

That’s nearly 20 times as long as the First Amendment. The definition has become part of the Free Flow of Information Act of 2013, which passed the committee last week by a vote of 13-5.

The legislation, which creates a so-called media shield law, would provide journalists with virtually the same protection that doctors, lawyers and the clergy have so they do not have to testify in court proceedings about their clients.

That’s important because journalists face contempt of court charges, jail time and fines if they fail to provide information in federal courts. I realize that some of you may think jail time and fines for journalists aren’t such bad ideas, but the existing federal practices are rather harsh.

At the moment, for example, James Risen of The New York Times faces such penalties. A federal subpoena ordered Mr. Risen to testify at the trial of former CIA officer Jeffrey Sterling, who has been indicted on charges of disclosing information to the reporter about the U.S. disruption of Iran’s nuclear program. Mr. Sterling is one of six federal employees the Obama administration has prosecuted in a crackdown on leakers — more than all previous administrations combined. The administration’s actions are an important part of the backdrop to this discussion.

Nearly every state and the District of Columbia provide some sort of journalistic privilege, but the federal court system does not, based on the case Branzburg v. Hayes, decided by a 5-4 decision in the U.S. Supreme Court in 1972. Ironically, a rather contradictory Supreme Court decision in 1991, Cohen v. Cowles Media, makes an oral anonymous-source agreement legally binding, which means revealing a source could cost a news organization money.

Here is the abbreviated version of who qualifies as a journalist, according to drafters of the Senate bill. In addition to reporters for acknowledged news organization, the protection would extend to bloggers, particularly those with “legacy” media experience in the past 20 years; writers for a news website; individuals who write for the “public good”; freelancers and college journalists. Terrorists and those who work for WikiLeaks apparently are not protected by the new shield, although a judge can determine who is a journalist or who is not if the definition fails.

Although many news organizations have endorsed the legislation, which also is moving through the House of Representatives, I have my doubts.

The law could encourage the expansion of the use of anonymous sources — something I have spoken against in many forums. Although the use of such sources has declined over the past 30 years, studies have shown major news organizations still frequently depend upon such confidential communications, making it difficult for the reader or viewer to determine the credibility of the source.

Mr. Risen’s lawyers haven’t had much luck on his behalf, losing recently in the U.S. Court of Appeals for the 4th Circuit, which is based in Richmond. I would like to see his case go to the U.S. Supreme Court, which could perhaps reconsider its reasoning in the 1972 Branzburg case. That decision involved four combined cases surrounding information from drug dealing to the Black Panthers. I believe the justices should take another look and overturn the precedent, particularly in light of the issues in the leakers’ cases concerning the use of the Espionage Act — a law that dates back to World War I.

I also cringe somewhat about Congress granting journalists such protection because what the government grants, the government also can take away. Nevertheless, whatever Congress or the U.S. Supreme Court decides, it may slow the Obama administration’s harassment of journalists and their sources.

Christopher Harper is a professor at Temple University. He worked for more than 20 years for The Associated Press, Newsweek, ABC News and “20/20.” He can be contacted at charper@washingtontimes.com. Twitter: @charper51.

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