House extends law to protect reporters

WASHINGTON —  Setting up a potential confrontation with the Bush administration over press freedoms, the House on Tuesday overwhelmingly passed legislation to extend new protections to journalists and their confidential sources.

The so-called shield law would for the first time establish standards that limit the power of federal authorities to compel reporters to testify or to disclose documents and unidentified sources they have used in their reporting.

The bill passed, 398 to 21, with broad bipartisan support after several high-profile cases in which journalists faced jail time for refusing to reveal sources. With 176 Republicans joining 222 Democrats, the measure far exceeded the two-thirds needed to override a veto.

“In recent years, the press has been under assault,” said House Judiciary Committee Chairman John Conyers Jr. (D-Mich.). “It’s . . . Congress’ responsibility to ensure that the press is able to perform its job adequately. . . . This measure balances the public’s right to know against the legitimate and important interests society has in maintaining public safety.”

A similar bill attracted broad bipartisan support when the Senate Judiciary Committee approved it, 15 to 2, earlier this month.

Even if the federal shield law wins Senate passage, it faces staunch opposition from the White House, which warned Tuesday that the law “would produce immediate harm to national security and law enforcement” by encouraging leaks and hampering the government’s ability to prosecute terrorism cases.

The administration warned of a veto if it is sent to the president.

More than 30 states have shield laws that protect journalists in state courts. And in more than 15 other states, the courts have recognized reporters’ rights to protect their sources.

Tuesday’s House vote comes after a more than 30-year campaign by media organizations for a law to prevent journalists from being forced to divulge their sources in federal court.

“Today’s vote in the House is a victory for a free press and for the American people as much as journalists,” said Clint Brewer, president of the Society of Professional Journalists.

The movement was born in response to the 1972 Supreme Court decision in Branzburg vs. Hayes, which concluded journalists do not have an unqualified 1st Amendment protection against grand jury subpoenas. But until recently, it had made little headway in Congress.

Many lawmakers were skeptical of demands journalists made for an “absolute privilege” to protect them from revealing information in all cases. At the same time, federal judges were generally sympathetic to agreements reporters made not to reveal their sources.

But recent high-profile showdowns between journalists and the federal courts over confidential sources reinvigorated the legislative campaign.

Two years ago, a federal judge sent New York Times reporter Judith Miller to jail for refusing to disclose her source in the investigation of the leaked identity of covert CIA operative Valerie Plame. She spent 85 days in jail. In San Francisco, another federal judge threatened to jail two San Francisco Chronicle reporters for refusing to disclose a source in their investigation of steroid use in Major League Baseball.

Media groups also softened their demands, agreeing to exceptions that would allow a federal judge to compel disclosure of documents or sources if it would prevent an act of terrorism or if a source would be “critical” to resolving a criminal case.

Responding to criticism from the Bush administration, the sponsors also added an exception Tuesday to allow a judge to order disclosure if it is “essential” to the investigation or prosecution of a leak of classified information.

The exception requires a judge to find that the unauthorized leak “has caused or will cause significant and articulable harm to the national security.”

And in a concession to business groups that had opposed the bill, the measure allows a judge to order the disclosure of individuals who have divulged trade secrets or private medical records protected by federal law.

The measure also seeks to resolve a long-standing debate about who should be considered a journalist and afforded the protections in the law. It limits protections to people who “regularly” gather and report news “for a substantial portion of the person’s livelihood or for substantial financial gain.”

“This legislation is not a radical step,” said Indiana Rep. Mike Pence, a conservative Republican who has been one of its leading champions along with Rep. Rick Boucher (D-Va.).

California’s shield law, which is among the most expansive in the nation, provides no exceptions for private records such as trade secrets, though the state Supreme Court has ruled that a defendant in a criminal trial may, in some cases, seek information from reporters.

Despite the more limited scope of the proposed federal measure, the Bush administration, which has consistently resisted legislative efforts to limit its authority, has tried relentlessly to stop the shield law.

Department of Justice officials, noting how rarely the government has sought information from journalists, testified at hearings that federal prosecutors are better equipped than judges to assess when a reporter should be required to reveal a source.

“Department guidelines require prosecutors to seek to subpoena journalists and media organizations only when it is necessary to obtain important, material evidence that can’t reasonably be obtained through other means,” spokesman Peter Carr said in a statement Tuesday.

Administration officials, raising the specter that a shield law would encourage breeches of national security, repeatedly warned that they would not be able to stop leaks of sensitive information.

“Today, foreign terrorists are keenly alert to revelations of classified information in our press,” Lt. Gen. Ronald L. Burgess Jr., acting principal deputy director of national intelligence, said in a strongly worded letter last month to the senior Democrat and Republican on the House Intelligence Committee.

But on Capitol Hill, the arguments moved few Democrats, who have become increasingly angry at the Bush administration’s insistence that it be allowed a free hand on national security.

Tuesday, House Speaker Nancy Pelosi (D-San Francisco) came to the floor to urge passage of the measure.

Democratic lawmakers cited the work of newspapers in recent years in uncovering scandals, including the administration’s use of warrantless wiretaps and secret CIA detention centers in its campaign against international terrorism.

Many Republicans also were unwilling to accept the administration’s assurances.

“As a conservative who believes in limited government, I believe the only check on government power in real time is a free and independent press,” Pence said on the House floor Tuesday. “The concentrations of power should be subject to investigation.”

noam.levey@latimes.com

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(BEGIN TEXT OF INFOBOX)

Shield law

Who is covered

“A person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain.”

How it would work

Federal authorities may not compel a reporter to testify or reveal a source unless a court determines disclosure would:

* Provide critical information in a criminal case.

* Prevent an act of terrorism.

* Prevent imminent death.

* Reveal the identity of someone who has revealed a trade secret or private health information.

* Help authorities investigate the unauthorized leak of classified information that would cause “significant and articulable harm” to national security.

Sources: H.R. 2101, the Free Flow of Information Act