WASHINGTON --- As federal judges order more reporters to disclose their confidential sources, news organizations are pinning their hopes on congressional passage of a media shield bill seen by the Bush administration as a threat to national security.
The legislation being considered in the Senate offers only modest shelter for reporters wanting to protect the identity of confidential sources. In many cases, it would leave the fate of journalists and their sources to the discretion of judges, who increasingly have been willing to jail or fine them.
Out of nine high-profile cases since 2003 where journalists were ordered to reveal information, four might have turned out differently had the proposal been law.
For them and dozens of other reporters subpoenaed for confidential information or the names of those providing that information, judges generally would have to weigh the "public interest" of the media reports -- a factor many judges already consider. They would retain the power to jail reporters who refuse to name sources who leak information involving national security.
If the bill were law, former New York Times reporter Judith Miller still might have gone to jail for 85 days for refusing to identify the government official who breached national security rules by leaking a CIA agent's name.
But two San Francisco reporters might not have faced the prospect of 18-month jail terms for refusing to name the source for leaks of secret grand jury testimony that shed light on a steroid scandal in professional baseball.
Supporters of the Senate bill and a House-passed version cite secret CIA prisons, warrantless wiretaps of U.S. citizens and crimes of top officials' in Richard Nixon's administration that came to light through confidential sources.
"Reporters, editors, publishers and their lawyers cannot with assurance articulate the rules governing confidentiality because legal standards are hopelessly muddled," said Ted Olson, a former solicitor general in the Bush administration who is backing a shield law to create uniformity in the courts.
"Fearing the consequences of exposure, sources withdraw," he said.
The administration opposes both versions and says it would be nearly impossible to enforce laws against unauthorized releases of classified information.
The government would have to provide evidence of "significant and articulable harm" to national security and make judges weigh the public interest in protecting confidential sources.
Attorney General Michael Mukasey has said the Senate bill defines a journalist too broadly.
News organizations win about 60 percent of state and federal cases involving reporters' privilege each year, with journalists losing more often when a grand jury is involved, according to a 2007 analysis by media lawyer James Goodale.
"Subpoenas should be reserved for the very rare case," said Patrick Fitzgerald, the special prosecutor who compelled reporters to testify in the CIA leak case. "But there is national security information going out the door on a pretty staggering basis. You can't say there's not a lot of serious information being compromised."
Mr. Fitzgerald, who subpoenaed Ms. Miller's telephone records, argues that a shield law is unneeded and potentially dangerous. He says federal prosecutors already are bound by Justice Department guidelines to issue subpoenas only in compelling situations.
Dismissing notions that media subpoenas would dampen investigative reporting, Mr. Fitzgerald said, "Journalists have been saying the sky is falling since 1972 ... and that suddenly the stories will dry up. But I'm not seeing big blank spaces on the front page."
Media groups aren't so sure.
"If journalists can't find protection in the courts, then legislation is the only answer," said Nathan Siegel, a lawyer who represents the Associated Press and other news organizations.
In all, 33 states, including Georgia and South Carolina, and the District of Columbia have passed media shield statutes that apply in state court, and 16 others have judicial precedents that protect journalists.
-- Associated Press