Shield law legislation finds middle ground

Friday, August 10, 2007

By Ken Newton

Mark Fainaru-Wada must shake his head at the irony of recent days.

Barry Bonds swings for the fences, the slugger trying to displace Hank Aaron as big-league baseball's all-time home run champion.

And Mr. Fainaru-Wada sits nearly a year removed from being sentenced to 18 months in prison for what he wrote about Mr. Bonds.

The men are inexorably linked. However, one avoids the truth and finds cheers in San Francisco, while one told the truth in the same city and nearly found jail because of it.

As part of his newspaper reporting on steroid use in baseball, Mr. Fainaru-Wada, along with his partner Lance Williams, published reports of federal grand jury testimony given by Mr. Bonds and others.

Prosecutors wanted to know who supplied the behind-closed-doors information. The reporters refused to reveal the source.

Last September, a federal judge ordered the two reporters to prison. It was only after an attorney revealed himself as the source that the judge rescinded his order.

Mr. Fainaru-Wada, who keynoted a conference I attended earlier this year, spoke of the night he told his children about the possibility of him going to jail.

He couldn't quite figure how to translate typical fatherly expressions -- tell the truth, do your job -- into an outcome that included prison.

This case is hardly rare in recent times. Judith Miller, the New York Times reporter jailed in the CIA leak case, spent 85 more days in jail than former vice presidential aide Lewis "Scooter" Libby ever will, and Mr. Libby was the guy doing the leaking.

The criminal division of the Justice Department issued 65 subpoenas to media organizations between 2001 and 2006. That's just one part of one level of government.

Last week, the Judiciary Committee of the U.S. House approved legislation that would largely immunize reporters from facing jail if they protect confidential sources.

The so-called "shield law" goes to the full House for debate, hopefully after the lawmakers return to the Capitol after Labor Day.

This measure, called the Free Flow of Information Act, would establish ground rules in federal cases for reporters gathering information from sources who need anonymity. Whistle-blowers find it more difficult to blow if the release of their names can be compelled by courts.

More than 70 members of the House attached their names to this legislation. The two Missouri co-sponsors, Republican Roy Blunt and Democrat Russ Carnahan, are far apart on the ideological spectrum, perhaps hinting at a bipartisan backing for the shield law.

More than 30 states have such protections written into their laws. Missouri and Kansas are two that do not. (When last seen in Jefferson City, shield-law legislation was assigned to a committee in January, never to resurface.)

But a U.S. shield law would have more than just an impact in the federal jurisdiction. Thirty-four state attorneys general filed a brief with the U.S. Supreme Court in 2005 saying the lack of a federal law undermines protection statutes in those states that have them.

Look, I recognize other ironies at work. We're in a business that promotes open meetings yet whines when prosecutors want our secrets.

It comes down to a matter of degree. Ask yourself, when was the last time an officeholder spent 85 days in jail for violating a sunshine law?

It's easy to dismiss the shield law as a reporter-protection act, but it is the public, not newspaper institutions, that benefits when accounts surface about things like the dangers of steroids.

The shield law, as proposed, grants no absolute protection to journalists but lands in a workable middle ground. Hopefully, lawmakers in Washington will see it that way.

Ken Newton, a former Southeast Missourian editor, is a senior reporter and columnist for the St. Joseph (Mo.) News-Press.

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