Wednesday, July 20, 2005
Hearings on the federal shield bill proposed by Senators Dodd and Lugar are moving forward even as Deputy Attorney General James Comey decided not to appear before the Senate Judiciary Committee today, saying the bill was "bad public policy." In prepared remarks Comey stated the bill would "create serious impediments" to the government's ability to fight terrorism. Senator Lugar's statement in support of the bill emphasized the need for clarification of reporters' rights given the split in the circuits. "Since Branzburg, states and the federal courts have pursued different courses of action with regard to extending a reporters’ privilege against disclosing confidential sources. Today every state and the District of Columbia, except Wyoming, has, through either legislation or the judiciary, created a privilege for reporters not to reveal their confidential sources. My own state of Indiana has a shield law that provides an absolute protection from qualified reporters having to reveal any information in court, whether published or unpublished, across a variety of media formats. The federal courts of appeals, however, have an incongruent view of this matter. The 11th Circuit allows the privilege to extend to civil and criminal cases. The 9th Circuit applies the privilege to civil and criminal cases but not in grand juries. The 5th Circuit holds that reporters are only permitted protection from government subpoenas when they are intended to harass the media. The 7th Circuit has yet to decide whether there is a privilege, although, in one case, it expressed skepticism of the federal courts of appeals that had concluded that Branzburg established a privilege."