Journalist Shield Law Passes US House, President Threatens Veto

A bill intended to grant journalists the right to protect the identity of their sources when questioned in court passed the US House of Representatives yesterday, by a vote of 398 to 21. The version as passed contained much clarified language, closing a legal loophole that might have enabled courts to compel journalists to divulge their sources anyway.

But another late addition to the House version of the Free Flow of Information Act altered the extent of its coverage to professional journalists only - specifically, those who make money. Specifically, it narrowed the scope of protection to "a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person."

Thus a blogger who is a non-professional and happens to have gathered information that may be of the public interest may be compelled to disclose her sources without a judge needing to provide a compelling reason. The concession may have been granted in response to requests from the Bush administration for fine-tuning. Another such concession included an exception to persons covered by this protection, involving foreign agents or individuals associated with known terrorists.

The clearest, and perhaps most welcome, clarification came as a rewording of the test a judge would have to consider when deciding whether a journalist can be compelled to divulge information. As it stands now, the FFI bill does not grant complete privilege between journalists and their sources, as currently exists in the law between attorneys and their clients or defendants and their spouses. A judge may decide whether the public interest of the country outweighs the private interest of the journalist witness.

That rewording comes in the final criterion of the bill's list, so it now states that a court cannot compel a journalist to divulge sources unless the judge decides "that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information." An earlier draft would have allowed a judge to declare that non-disclosure was against the public interest, which is a far easier legal test; here, the weight of competing interests is clearly specified, forcing a judge to address them both in his or her decision.

The Senate version of the FFI bill passed the Judiciary Committee two weeks ago, and has yet to come up for a floor vote.

But President Bush may still be urged to veto the legislation if and when it emerges from conference committee and passes both houses of Congress. As reported late yesterday in Broadcasting & Cable, Rep. Lamar Smith (R - Texas) told reporters he had been in contact with senior administration officials, who say Director of National Intelligence Mike McConnell is among those who remain critical of the legislation, along with Justice Dept. officials who say the bill still would restrict their ability to carry out federal prosecutions.

While the extremely lopsided vote in the House suggests enough support there to override a presidential veto, a huge hurdle may remain in the Senate, where 66 votes or more would need to be assembled. Though Republicans there have voiced support for the bill, they may still be unwilling to side against the President, regardless of his recent record low approval ratings.