By Richard A. Joyce

Redstone Review VP

PUEBLO – In October, I took President Obama to task for his attempt to gut a proposed federal shield law, S. 448, that he had once supported and that would have protected journalists from having to reveal their sources unless the government could convince a federal court that the information could not be obtained any other way and that it involved a matter of national security.

Obama had tried, through messages to the Senate Judiciary Committee, where the bill has languished for the past five years, to change it in such a way as to place the burden of proof on reporters and their news organizations to show that the information sought was not a matter of national security. Federal judges would have been instructed to give the government a preferred position in any debate over whether the information sought was vital to national security.

Among those outraged by Obama’s action were the thousands reporters and editors in the U.S. represented by the Society of Professional Journalists, an organization championing the highest professional and ethical standards of journalism, and one to which I am happy to say I belong.

A few days after my column was published in the October Redstone Review, I received an e-mail from SPJ, referring me to an article on the organization’s Web site praising a compromise that had been worked out with the administration. It stated, in part:

“Leaders of the Society of Professional Journalists, SPJ, welcome the compromise the Obama administration, senators and news organizations reached on a federal shield law that would protect journalists, their sources and the public’s right to know. Although SPJ does not believe S. 448 is a perfect bill, the Society’s leaders carefully examined the proposed legislation, and on behalf of its more than 8,000 members, have decided to support the protections granted to journalists.

“ . . . SPJ is pleased that the revised legislation provides a shield for journalists protecting their confidential sources in criminal and civil proceedings. The bill covers subpoenas issued by grand juries and special prosecutors, in addition to prosecutors, civil litigants and criminal defendants. This revision requires that the party seeking confidential information first exhausts alternative sources; proves that there is a high need for the information; and conducts a public-interest balancing test before a federal court will compel disclosure of source information.

“In criminal cases, reporters may be forced to demonstrate that there is clear, convincing evidence that the public’s right to know is more important than disclosure of requested information. However, in civil proceedings, the legislation provides more protection, including in cases regarding the Privacy Act. The legislation also states that federal judges may overturn subpoenas for reporters’ testimony if the judges determine that the public’s right to know outweighs the need for the government to know the source.

“Another change in the legislation that is attracting attention is the inclusion of bloggers, freelance journalists and student journalists to the definition of protected individuals. To define a journalist, a test is applied to assess if the person is regularly gathering information for public dissemination, instead of by whether or not the journalist is paid by a news organization – a definition that was included in previous drafts of the bill.”

These provisions constitute great news for all those who practice journalism in the U.S., not just for those who own or work for the few who own traditional media outlets.

Subsequent to that letter, there was proposed an amendment to S. 448 that would have narrowed the definition of journalist to those who perform their information gathering and disseminating skills for what might be termed “legitimate” news gathering organizations.

Fortunately, the Judiciary Committee saw some First Amendment problems with that and defeated it. Unfortunately, as the SPJ article said, “Stipulations that have not changed in this version refer to the treatment of information regarding terrorist activity and harm to national security.”

So, SPJ now endorses S. 448, which was reported out of the Judiciary Committee on Dec. 10 and will be heard and debated in the full Senate. I certainly can endorse the provisions of the bill cited above, but I cannot let the president and his advisers off the hook for the prejudicial bias in favor of government that still exists with regard to terrorist activity and harm to national security.

It reads: “In considering the extent of any harm to national security when applying section 2 to such cases, the court shall give appropriate deference to any specific factual showing submitted to the court by the head of any executive branch agency or department concerned.”

In other words, any court attempting to decide if a journalist will be forced to reveal a source because the information that came from the source may endanger national security must give deferential treatment to the argument and facts put forth by any executive branch entity claiming that the information is a danger to national security.

So, reporters must prove, in an uphill battle where the law gives the government the high ground automatically, that national security has not been endangered. If they cannot, and it is virtually impossible to prove a negative, they may be punished and possibly forced by that punishment to break their promises and reveal sources who most certainly will be punished severely one way or another.

And the public’s right to know what its government is doing in its name and by its authority will be severely undermined as potential future sources of such important information fade back into the shadows and keep their mouths shut.            There may be some, even many in this country, who believe that’s how it should be, but those who founded the nation and crafted our First Amendment were not among them.

President Obama shouldn’t be among them, either.

Richard A. Joyce is associate professor in the mass communications department at Colorado State University-Pueblo. He was the managing editor of the Canon City Daily Record. He can be reached at phase15@mac.com.

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