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One Man's Shield, Another's Sword

Sen. John McCain's announcement last week that he supports a federal media shield bill kicked off another round of editorials, commentaries and all-around journalistic special pleading for the legislation. You have The New York Times public editor Clark Hoyt's column on Sunday, "Squeezed by the Courts," in which he recounts the troubles of former USA Today reporter Toni Locy. She is facing excessive contempt penalties after a judge ordered her to reveal her sources about the "person of interest" in the anthrax attacks, Steven J. Hatfill. The Times also weighed in with today's editorial, "Protecting a Basic Freedom," with a whack at the Administration's "excessive secrecy and aggressive targeting of reporters by prosecutors" and what the editors consider bogus arguments about national security. The Times contends,

Their opposition overlooks both the measure's ample protections for law enforcement and national security and the urgent need to protect whistle-blowers and other government insiders who expose government corruption and wrongdoing.

In an effort to muster the votes necessary to beat back a filibuster threat, the bill's chief Senate backers are trying to hammer out a few revisions. The bill already contains exceptions to the journalistic privilege for cases where the information is needed to prevent death, kidnapping or serious bodily harm.

Walter Pincus also considers the national security angle in his Washington Post column, "Cabinet Officials Cite Concerns About Senate Version of Reporter's Shield Law," noting the objections of Attorney General Mukasey and Director of National Intelligence McConnell to the Senate bill, S. 2035.

We're concerned, too, you know. Business envisions the disgruntled employee, politically motivated activist and accommodating trial attorney all hiding behind the media shield's protection to disclose sensitive, confidential personal or corporate information under the guise of "whistleblowing." Steal a document, get it to your lawyer, pass it to a disgruntled and politically motivated reporter for publication, and then sue on the basis of the published document. Blather, rinse, repeat.

Over in the House, the sponsors of H.R. 2102 considered some of these business objections. Section 2, paragraph a(3), allows the judicial compelling of disclosure in the case of trade secrets, identifiable health information, or confidential financial information. So the House version is better than it once was, but there are still lots of ways an inventive litigator could turn a media shield into a sword to strike at business.

The Senate version lacks even those protections, making it easier for an attorney to orchestrate an anti-corporate media campaign as a strategy in a class-action or punitive damages suit.

There's corrective language available -- judicial balancing tests, etc. -- that could make the bill not so potentially damaging to the private sector, and committee staff seem to appreciate business concerns. Trouble is, a head of steam is building behind the legislation, stoked by an obviously self-interested media. Slow down, we say. There's more to this bill than what you read in the papers.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.