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Compromise in federal shield law may help bill to win passage

Thi article first appeared in the St. Louis Beacon, Nov. 3, 2009 - The federal "shield law," which has been stuck on Capitol Hill for years, seems closer to passage now that Senate Democrats and the Obama  administration have compromised on how the law would apply to leaks involving national security.

Shield laws, which exist in 37 states, allow reporters to protect the identity of confidential sources in most cases. There is no federal shield law, so reporters face the prospect of jail if they refuse to name sources when called before federal judges. Former New York Times reporter Judith Miller served 85 days in jail for refusing to disclose to federal prosecutors that Lewis "Scooter" Libby had leaked theinformation that Valerie Plame was a covert CIA agent.

One of the bill's most significant changes is that it appears to protect bloggers, citizen journalists and freelancers. Previous versions of the bill required a journalist to earn money to be protected, but the most recent version eliminates that requirement.

President Barack Obama had supported the shield bill when he was in the Senate. But, in recent weeks, his administration has raised concerns about the application of the law to national security cases.

Under the compromise reached with Obama officials, reporters couldn't invoke the shield law if the confidential source was involved in an act of terrorism. In other national security cases, the journalist would have to demonstrate to a judge by the preponderance of the evidence that shielding the source was not "likely to cause significant and articulable harm to national security."

In criminal cases, the burden of proof would be on the journalists as well. They would have to show that the public interest in the free flow of information outweighed the public interest in the criminal case. The Balco steroids case, where San Francisco Chronicle reporters obtained secret grand jury transcripts implicating Barry Bonds in steroids use, is an example of this kind of case.

In civil cases, litigants seeking the name of a confidential source would have to show they had tried every other avenue of gathering the information and would have to persuade a judge that the need for the information outweighed the importance of newsgathering.

Under the current version of the bill, student journalists would be covered. That is significant in the wake of a recent effort by Chicago area prosecutors to obtain confidential information from student journalists at Northwestern's Medill Innocence Project. The students have unearthed information that could free a man in jail for a murder he may not have committed.

Bloggers have feared -- and still worry -- that the mainstream media will trade away protection for unsalaried journalists in the final drafting of the bill.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.