The Senate Judiciary Committee, the one down in Washington that is, passed legislation today by a 15-2 vote that would establish a federal reporters’ privilege law to protect the exchange of information between journalists and confidential sources.

It's something the Vermont Press Association, among others, has argued for in light of an increasing number of cases in which journalists have been forced to testify in court. That has a way of quashing the public's sense that we are independent, not tools of the government. It would even apply, apparently, to bloggers (what a world). Of course, the Scooter Libby case is the most high profile recent national impetus for such a law.

Don't hold your breath. The Associated Press reports that the legislation faces opposition in the full Senate and the White House.

"The Bush administration opposes the measure on grounds it would make it
harder to trace the source of leaks that could harm national security.

"So does U.S. Attorney Patrick Fitzgerald, who subpoenaed reporters to
testify against White House aide I. Lewis "Scooter" Libby in a case that grew
out of Fitzgerald's CIA leak probe. Libby was convicted of obstruction, perjury
and lying to the FBI; his sentence was commuted by President Bush."

The law that passed the committee today, co-sponsored by committee Chairman Patrick Leahy, D-Vt., would:

- Establish a federal qualified reporters’ privilege to protect and
encourage the free flow of information between journalists and confidential
sources.

- Reconcile a reporter’s need to maintain confidentiality -- in order to
ensure that sources will speak openly and freely -- with the public’s right to
effective law enforcement and fair trials.

- Balance the public interest in combating crime and protecting national
security and the public interest in ensuring a free and vibrant press by
providing that a federal court can only force a journalist to reveal
confidential source information when the information is truly crucial to a case
or investigation.

- Require the party seeking a reporter's confidential information to
exhaust all reasonable alternative sources before turning to the media.

- Contain exceptions to the privilege for those situations where
information sharing is critical. For example, a reporter may not withhold
source information where such information is needed to prevent a terrorist
attack, significant harm to our national security, death, kidnapping, or
substantial bodily harm. Journalists who witness crimes also cannot refuse
to share their eyewitness observations.

- Defines “journalist” to include anyone who regularly engages in
journalistic activities -- so that legitimate bloggers that disseminate
information about matters of public interest are covered by the qualified
privilege.

You can read the whole thing HERE.

And here you can read the Vermont Press Association's input:

Dear Senator Leahy:
On behalf of the Executive Board of the Vermont
Press Association, which represents the interests of the 10 daily and four dozen
non-daily newspapers circulating in Vermont, I have been asked to write in
support of all efforts to create a shield law that will provide further support
to the U.S. Constitution so reporters are able to gather news without fear of
being subpoenaed into court for just doing their job.

There has been an
increase in problems at both the federal and state court levels. Judges are
failing to properly interpret the Constitution when it comes to the First
Amendment and protecting journalists from unwarranted subpoenas.

Over the past year there have been two cases in Vermont where reporters
were forced to testify or provide video about public events when there were
scores of other witnesses, including law enforcement personnel.

In the most recent case, the Vermont Supreme Court ruled in Spooner v.
Town of Topsham that a reporter for the tiny Journal Opinion in rural Bradford,
Vt. had to testify in court about a public meeting of the town selectmen that
the reporter covered. Others attended the meeting and minutes were also
recorded. A shield law would have prevented the subpoena.

The Journal Opinion reported about a decision made during a public meeting
of the board on Sept. 10, 2001 to appoint a new road foreman. The newspaper
reported that two of the three selectmen said part of their reasoning for
picking between the two finalists was that their choice was "younger." The other
finalist later filed a civil suit against the town claiming age discrimination
as the reason he was not hired. His allegations were based on the public
comments the two Select Board members made at the open meeting.

The trial court rejected efforts to get the reporter on the stand, citing
much of the precedent used at both the federal and state level. For some unknown
reason the Vermont Supreme Court took an ill-advised U-turn on this case.

This is a case that clearly shows a "chilling effect" on the right to
gather news. This small newspaper (circulation about 4,500 weekly) spent more
than $12,500 fighting the subpoena and winning at the trial court level, only to
learn of a last minute appeal to the Vermont Supreme Court. The pricetag is now
over $25,000 and the paper has thrown in the towel because it can not afford to
take the case further. The legal bill has had serious consequences for the cash
flow and monthly profit attempts by this small community newspaper.

The court thought the case would not create a burden for the newspaper. It
clearly has at the Bradford paper and for all the other newspapers in Vermont
upon learning about the poorly reasoned decision. The same can be said for all
those 1,000s of community newspapers spread across America that would be unable
to afford such a costly fight.

I know Ross Connolly, the longtime publisher and editor of the Hardwick
Gazette also has sent you his concerns. The VPA Executive Board would echo his
thoughts.

This is a time when the nation needs a strong news gathering effort not
only in Vermont, but across the nation. Newspapers can not afford to have their
reporters sitting around waiting to give depositions or testimony in court when
the information sought is protected by the First Amendment of the
Constitution.

Thank you for your time and if you wish any clarification or further
elaboration please don’t hesitate to contact me or the association.

Sincerely,
Mike Donoghue
Executive Director
Vermont Press
Association

- Terri Hallenbeck