WASHINGTON – Bolstered by public support for the ability to guard anonymous sources after a high-profile case sent one reporter to a federal jail, journalists and their advocates say they are hoping Congress will successfully step in on their behalf.
"The momentum has been building and is continuing to build, with the jailing of [New York Times reporter] Judy Miller being the latest push," said Irwin Gratz, an editor with the Maine Public Broadcasting Network and president of the Society of Professional Journalists.
The "push" is upon legislation recently proposed in the House and Senate that would provide a shield for journalists who do not want to disclose their anonymous sources at the request of federal prosecutors.
In twin bills sponsored by Sen. Richard Lugar (search) and Rep. Michael Pence (search), both Indiana Republicans, the Free Flow of Information Act would prevent prosecutors, with some exceptions, from compelling reporters to testify about their sources or face possible jail time.
"I know what we're being told by our First Amendment lawyers in Washington. They believe that this issue can be in play now as opposed to several years ago when they said it was a dead issue," Gratz said.
Miller, a Pulitzer Prize Winner, has been serving jail time in Alexandria, Va., since early last month after she refused to testify in front of a grand jury about her source for an unpublished story on the identity of CIA agent Valerie Plame (search), wife of Ambassador Joe Wilson.
A federal investigation is focusing on whether government officials knowingly leaked Plame's identity in 2003 in an effort to discredit Wilson, who had been critical of the Bush administration's justifications for invading Iraq.
On Monday, House Democratic lawmakers wrote to vice presidential Chief of Staff Lewis "Scooter" Libby asking him to grant Miller a personal waiver releasing her from any pledges she made to him promising anonymity.
"New information has come to light that indicates that you met with New York Times reporter Judith Miller on July 8, 2003, and discussed Mrs. Wilson. ... Special Prosecutor Patrick J. Fitzgerald has reportedly determined that it may well be relevant to the ongoing probe. However, according to the same report, his investigation has been impeded by your lack of cooperation, specifically your failure to produce a personal waiver to Ms. Miller," wrote Reps. John Conyers of Michigan, Rush Holt of New Jersey and Louise Slaughter and Maurice Hinchey, both of New York.
Support for Confidentiality
Time magazine's Matt Cooper avoided jail at the last minute by revealing his source for a separate Plame story to be senior White House policy adviser Karl Rove, who along with Libby has testified to the grand jury investigating the leak. At last month's Senate Judiciary Committee hearing, Cooper testified on behalf of the proposed shield law.
So did New York Times columnist William Safire, who did not write about Plame before she was first outed in an article by Robert Novak on July 14, 2003. Safire testified that without being able to promise a degree of confidentiality to sources, good stories that inform and even serve the public good may never make it into print.
"Not all sources are angels, and some of us grant anonymity too quickly; responsible editors are correcting that," he said. "But the essence of news gathering is this: if you don't have sources you trust and who trust you, then you don't have a solid story and the public suffers for it."
Recent surveys suggest public sympathy toward keeping sources confidential. An online poll by The Associated Press in June showed that more than half of respondents said Miller was right to refuse to reveal her source.
In another June poll by the Pew Research Center for the People and the Press, 76 percent of respondents said that it is "sometimes" okay for reporters to keep their sources confidential if it is the only way to get the information. Overall, however, 52 percent of respondents said it is "too risky" to use such sources because it could lead to inaccurate reports.
Meanwhile, recent cases in which reporters have been jailed may have already curbed the use of anonymous sourcing. In another AP poll in June, nearly 25 percent of editors among 419 news organizations said they have banned the use of anonymous sources completely.
The same poll by the Associated Press Managing Editors revealed that 42 percent of respondents said anonymous sources made no difference to their view of a story, with an additional 11 percent indicating that they even made the story more believable.
The editor at the Cleveland Plain Dealer told Editor & Publisher Magazine in July that it scrapped two investigative pieces "of profound importance" because they were based on illegally leaked documents and the paper feared prosecution like the Plame case. The paper's editors later ran one of the stories, based on a leaked 2002 FBI affidavit that mapped out widespread corruption in City Hall under former Cleveland Mayor Michael White, after a Cleveland weekly beat the Plain Dealer to its scoop.
The Case for Imprisoning Reporters
According to the Reporter's Committee for Freedom of the Press, in 2001 freelance writer Vanessa Leggett was the first reporter to go to federal prison since at least 1984. Leggett served nearly six months in prison for failing to reveal her sources relating to a murder case. Prosecutors argued she enjoyed no constitutional protection because she was a freelancer.
Earlier this year, a federal court sentenced WJAR-TV reporter Jim Taricani (search) to 121 days of house arrest for refusing to reveal the source who supplied him with a videotape capturing evidence of corruption among city officials in Providence, R.I.
Thirty-one states and the District of Columbia have shield laws already, but the standards and protections vary. The courts have inconsistently ruled on the protections offered journalists by the U.S. Constitution and the U.S. Supreme Court refused to rule in the recent Miller-Cooper case.
At the July Senate hearing, the Department of Justice weighed in against the Lugar and Pence proposals, asserting in written remarks that "the bill would create serious impediments to the department's ability to effectively enforce the law and fight terrorism."
The authors of the House and Senate bills have since revised the language to allow for exceptions to the shield if a source is necessary to prevent imminent harm to national security or is essential to the prosecutor's case.
Forty-eight representatives have joined Pence's revised bill. Nine senators have signed on to Lugar's newer legislation.
But at least one law enforcement official is siding with the Justice Department. Jim Pasco, a 27-year veteran of law enforcement and executive director of the national Grand Lodge Fraternal Order of Police, told FOXNews.com that Miller is "clearly breaking the law" by showing contempt for the court, and that journalists far too often see themselves as above the law.
"The idea that journalists are somehow a privileged class of citizens that can make their own constitutional decisions is wacky and a shield, using this case theoretically, what it does is allow reporters to keep prosecutors from finding out whether someone may or may not have committed a crime," Pasco said.
Pasco added that the First Amendment should be enough to shield reporters who have legitimate reasons for protecting their sources, but a blanket shield law would "allow reporters to continue to shield criminals."
"A shield law that allows people to obstruct doesn't serve the public justice," Pasco said.
Gratz, however, said the lack of a federal shield law leaves journalists vulnerable to undeserved prosecutions.
"We have to get some protection on the books, frankly, to restore some of the balance," said Gratz.
Jane Hall, communications professor at American University and a regular guest on FOX News Watch, predicted an uphill battle for the legislation, noting that public support for the media overall has been on the wane.
"Is it needed? I believe so, but is it going to pass? I don’t know," she said.
Mark Fitzgerald, editor-at-large for Editor & Publisher Magazine, said he wants the use of anonymous sources protected, but he is wary of Congress making new laws that he said he believes could lead to limits on the industry.
"The first thing we will have is legislators and judges deciding who is and who is not a journalist," he said, adding that prosecutorial "zeal" is "astounding" and many prosecutors will likely find ways around any federal shield law.
"That's a very good point and one I unfortunately have no answer for," said Tom Honig, executive editor of the Santa Cruz Sentinel, which has endorsed the federal proposals. "The (state) shield laws came out because without them, truly, law enforcement will use us and all of our sources will dry up."