Conservatives side with "shield law"

WASHINGTON — An unusual cast of conservatives has added momentum to a bill that would protect the confidentiality of reporters' sources, even as the Bush administration has lobbied vigorously against the idea.

The latest flash point in the debate came Friday in an appellate courtroom in Washington, as a former reporter for USA Today faced fines of $5,000 a day for refusing to disclose the sources of her articles on the FBI's 2001 anthrax investigation.

A conservative judge on the District of Columbia U.S. Circuit Court of Appeals, Judge Brett Kavanaugh, a former official in the Bush White House, offered perhaps the broadest defense of reporters' rights during oral arguments in the case.

Kavanaugh noted that "49 states have recognized some sort of common-law privilege" protecting the confidentiality of reporters' relationships with their sources, and he questioned why lawyers for Toni Locy, the former USA Today reporter facing a contempt citation, had not asserted that privilege more aggressively.

The appeals court hearing came three weeks after Sen. John McCain, R-Ariz., the presumptive Republican presidential nominee, joined both candidates for the Democratic nomination in backing a federal "shield law" offering some protection for the confidentiality of reporters' sources.

McCain cautioned that his support for the law was "narrow" because of his concerns about damaging national-security leaks in the media. But he said he would support legislation pending in the Senate, despite the opposition of the White House.

A federal shield law passed the House last year by a veto-proof margin of 398-21, with a conservative Republican — Rep. Mike Pence of Indiana — leading the effort.

"What's a conservative like me doing passing a bill that helps reporters?" Pence asked during the debate last year. The answer, he said, came from his belief that "the only check on government power in real time is a free and independent press."

Shielding reporters' confidential sources, he said, "is not about protecting reporters; it's about protecting the public's right to know."

But the White House has mounted a spirited effort to defeat the proposal. The Justice Department has devoted a special page on its Web site to the issue, and six Cabinet-level officials have written recent letters voicing their concerns about the legislation.

The attorney general, Michael Mukasey, warned that the proposal would "wreak havoc on national security and other investigations." The administration argues that a shield law would encourage leaks and would prove "a safe haven for foreign spies and terrorists" who might be doing the work of journalists.

The prospects for the measure in the Senate are uncertain. "It is on our to-do list and we hope to get to it as soon as we can," said Jim Manley, a spokesman for the Senate majority leader, Harry Reid of Nevada. Manley said the measure would face a likely filibuster on the Senate floor, with 60 votes needed for passage.

But the White House's aggressive lobbying has created a backlash of its own among some lawmakers.

"I've been around awhile, and I've never seen such an avalanche of letters coordinated in such an unrealistic, emotional, unwarranted attack on a piece of legislation," said Sen. Arlen Specter, R-Pa., who has helped lead the shield-law effort.

Locy wrote two fairly routine and somewhat skeptical articles about the FBI's investigation into whether Steven Hatfill, a former Army scientist, was behind the 2001 anthrax attacks, and Hatfill is trying to find out the sources of her articles as part of a privacy-act claim he has brought against the government.

Locy's refusal to identify those sources has led to a contempt citation that could lead to fines of up to $5,000 a day.

A three-judge panel heard oral arguments for about an hour Friday and is expected to issue a written opinion in coming weeks to determine whether the fines should be enforced.