Now the Senate is likely to put the bill on its calendar again this month, but its future remains uncertain. And even if it can pass the Senate, the Bush administration might veto it over national security concerns.
The shield law would cover anyone who "regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes news or information "¦ of public interest" for public dissemination. It would give journalists the right to refuse to reveal information and sources they obtained when gathering news except in a few circumstances, such as, in fact, when national security is at stake.
The practical purpose of the law is to prevent officials from using the media as an investigative tool of the government or interfering with the newsgathering process. The qualified privilege to keep sources and information confidential would be similar to that given to lawyers and their clients.
Journalists have long argued they can't effectively get information about government wrongdoing if they can't assure their sources that their names won't be revealed. Some of the biggest stories exposing government corruption " from Watergate to Walter Reed " have only come to light because inside sources, fearful of retribution, were finally willing under promise of anonymity to tell what they knew.
Today, without the shield law, using confidential sources is akin to playing Russian roulette. If the government demands the reporter reveal the source and the reporter refuses, he or she can end up in jail. If, on the other hand, the reporter promises not to reveal the source's name and then does, he or she can be sued for breach of contract.
Shield laws are not new. Thirty-four states, including Oklahoma, have some form of a law to shield journalists and their confidential sources and information from state government intrusion. Discussion of a possible federal shield law began more than three decades ago after the U.S. Supreme Court ruled in 1972 in Branzburg v. Hayes that reporters had no First Amendment protection against grand jury subpoenas. Yet, even that decision was close, 5-4, and lower courts have generally interpreted the ruling narrowly, many recognizing at least a limited First Amendment protection in other hearings.
In fact, media watchers claim most opposition to the present bill comes largely from those worried about risks it might pose to national security, even though those concerns are addressed in the legislation. Under the proposed law, journalists would be required to reveal confidential sources and documents if, by a preponderance of evidence, a federal court found that the protected information would help prevent a specific act of terrorism or harm national security. The law also would not shield journalists from obligations to reveal eyewitness accounts of a crime or provide information that would prevent death, kidnapping or substantial bodily harm.
Both presidential candidates have publicly stated they support the bill. The House passed the bill with strong bipartisan support. Attorneys general from 42 states through the National Association of Attorneys General have sent a letter to senators supporting the measure and urging Senate leaders to bring it to the floor for a vote.
The bill establishes reasonable rules for when reporters can be required to reveal their sources. It also comes at the best possible time " when government is already more inclined to argue that to be effective, it must hide behind the guise of national security, away from the prying eyes of press, public and accountability.
We've all seen those movies where the hero has only the media to turn to for help against the government. What happens if the government can effectively muzzle the media by finding the source and scaring him into silence?
The ultimate weapon against corruption has always been to expose it. This law will help do that.
Mark Hanebutt is a professor of journalism at the University of Central Oklahoma.