President's Column: The Time is Now for A Federal Shield Law

By Barbara Cochran

A current case involving a reporter from USA Today underscores the need to protect sources.

Three years ago, Jim Taricani left the home where he had been confined for 80 days to attend the RTNDA convention in Las Vegas. The investigative reporter for WJAR-TV in Providence, RI, received a Certificate of Commendation for his courage in serving nearly four months under house arrest. His crime: refusing to name a confidential source for a story on City Hall corruption.

Taricani spoke about the hardship of house arrest, where he couldn’t even step outside his front door to collect his morning newspaper. But he said it was all worth it because he felt obligated to keep his word to his source. If he had broken that promise, he said, other sources and whistleblowers with important stories to tell would have refused to come forward.

Taricani’s case helped build momentum for a federal shield law, which would have protected him from being forced to reveal his source. We’ve made a lot of progress with the legislation now in Congress. Yet three years later, that law has still not been enacted, and more journalists have had to face the same choice Taricani did, just for doing their jobs.

Judith Miller of the New York Times served 85 days in jail rather than reveal the source of her reporting on the Valerie Plame case. Five news organizations, whose reporters faced fines of $500 a day for refusing to disclose their sources in a civil suit brought by nuclear weapons scientist Wen Ho Lee, paid $750,000 as part of a settlement. Two San Francisco Chronicle reporters were sentenced to prison for refusing to reveal sources of stories about illegal distribution of steroids to major league baseball players, a case that ended after a defense attorney admitted showing grand jury transcripts to one of the reporters.

Now a judge’s ruling this March has raised the stakes even higher for reporters trying to protect their sources. U.S. District Judge Reggie Walton ordered Toni Locy, a former reporter for USA Today, to pay fines that escalated from $500 a day for the first week to $1,000 a day for the second week and $5,000 thereafter until she appeared before the judge again on April 3. Further, he ordered that she pay the fines herself, without any help from her former employer or any other individual. And, for good measure, he refused to suspend the fines while she appealed. Walton’s actions were unprecedented.

Locy’s case involves a suit brought by Steven J. Hatfill, a former Army scientist identified by the Justice Department in 2002 as a “person of interest” in the anthrax attacks following September 11, 2001. Hatfill has sought to force a number of reporters to disclose the sources for stories written about the anthrax investigation. Three former Justice officials released the journalists from their promises of confidentiality and gave depositions. But Hatfill continued to pursue Locy and Jim Stewart, a retired CBS News correspondent. Walton has not yet ruled in Stewart’s case. The U.S. Court of Appeals suspended Locy’s fines while the appeal is being considered. Her case will be argued on May 9.

This case is the latest to underscore the urgent need for a federal shield law. As more reporters are threatened with contempt citations and more judges increase the pressure, the situation grows more threatening. RTNDA has joined dozens of media companies and journalism organizations in calling attention to the Hatfill case and urging Congress to pass a shield law now.

The bill before Congress is the Free Flow of Information Act. In October, the House passed the bill by a vote of 398 to 21. The legislation provides uniform ground rules for when a reporter can be protected from revealing the identity of confidential sources in federal court. The bill also acknowledges the public interest in having reporters testify under certain circumstances.

In the Senate, the Judiciary Committee approved the bill with a bipartisan vote of 15-4. The focus is now on Senate leaders to bring the bill to the floor. You can help. Just this month, an RTNDA member contacted me before meeting with his senator, to learn about the legislation. Here are some points anyone can use:

■The Hatfill case is part of a trend toward more pressure from the federal government and civil litigants to force journalists to reveal their sources, threatening the integrity of investigative journalism and underscoring the need for a federal shield law.

■News organizations prefer to get their information on the record. But many important stories have come from confidential sources -- the Enron scandal, deplorable conditions at Walter Reed Medical Center and steroid abuse in Major League Baseball. These stories would have been unknown to the public -- and to Congress -- without confidential sources.

■While 49 states and the District of Columbia recognize a reporter’s privilege through statute or case law, there is no uniform standard that applies to federal cases.

■The legislation recognizes the role of the federal government in protecting national security and provides for exceptions where a reporter’s information would prevent a future act of terrorism or other significant harm.

There is more information at RTNDA.org on the Free Flow of Information Act and RTNDA’s role in fighting for this legislation. Look at the list of companies that have endorsed the bill and urge your company to sign on if it hasn’t already. You can also learn how to urge your senator to support the bill.

We’ve made progress since Jim Taricani spoke at our convention three years ago. Many doubted a federal shield law would get this far; now it’s time to push the rest of the way. Just as we won the battle to reform the Freedom of Information Act with the OPEN Government Act passed by Congress and signed by President Bush in December 2007, we can fight to ensure that the Free Flow of Information Act becomes law. Then reporters won’t have to choose either keeping their word or paying a steep price.

Barbara Cochran may be reached at president@rtnda.org.

Originally published in the April 2008 issue of Communicator. All rights reserved.

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