A bill that has been years in the making to protect journalists from unwarranted intrusion by the government and maintain free flow of information to the public was approved Sept. 12 by a 13-5 vote in the Senate Judiciary Committee.
S. 987, known as the Free Flow of Information Act, would protect journalists and their employers from having to reveal information, including source identity, that a reporter obtains under the promise of confidentiality, and would establish a legal framework for determining the limited circumstances under which disclosure may by compelled by a court. Various versions of the legislation have been introduced every Congress since 2005, but the push for the legislation this year was prompted by recent national security leaks from the government to news organizations.
Three Republicans on the committee – Sens. Orrin G. Hatch (R-Utah); Charles Grassley (R-Iowa) and Lindsey Graham (R-S.C.) – joined the Democrats in reporting the bill, which was introduced by Sen. Chuck Schumer (D-N.Y.) in May.
A major factor in approval of the bill was an amendment, offered by Sen. Dianne Feinstein (D-Calif.), that would define a journalist covered under the law as an individual who has worked for a specified length of time for or been affiliated with an organization that “disseminates news or information.” The definition also includes individuals with a substantial record of freelancing and those who are student journalists. The amendment also would create a mechanism for a judge to grant protection on a case-by-case basis to some individuals not specifically covered by the definition. Not included in the definition are an individual whose principal functions is to publish primary source documents that have been disclosed to that individual without authorization or an individual who is reasonable likely to be associated with terrorist activities.
The bill would require the government to show that it tried all other alternatives to obtain the information it is seeking before compelling a journalist to disclose his or her sources or protected information. The bill would not shield reporters from disclosing their sources of information in certain situations, including:
•the journalist obtained the information through criminal conduct;
•government access to the information is necessary to prevent death, kidnapping, substantial bodily injury, sex offenses against minors, or incapacitation or destruction of critical infrastructure; and
•there is a preponderance of evidence that protected information would materially assist the government in preventing or mitigating an act of terrorism or other act reasonably likely to cause significant harm to national security.
In correspondence to the Senate Judiciary Committee in previous Congresses, ABA Governmental Affairs Director Thomas M. Susman expressed the ABA’s support for enactment of a federal shield law for reporters.
“The ability and willingness of the press to uncover information to which the American people would not otherwise have access is a hallmark of our democracy,” Susman wrote. “Maintaining the free flow of information may not always be a popular position, especially during trying times,” he explained, “but it is essential in a democracy.”
The ABA’s policy, adopted in 2005, urges “Congress to enact a federal shield law for journalists to protect the public’s need for information and to promote the fair administration of justice.” The ABA also maintains that before a party subpoenas a journalist to compel disclosure, the party should prove that the information is crucial to the matter at hand, that the party has attempted to retrieve the information from all practical alternative sources, and that the need for the information the party is seeking outweighs the public interest in protecting the free flow of information.
The Obama administration has expressed support for reporter shield legislation, and Schumer indicated that he hopes the bill will be on the Senate floor this fall for consideration.
“We’re closer than we’ve ever been before to passing a strong and tough media shield bill,” Schumer said after committee approval of the measure. “This legislation ensures that the tough investigative journalism that holds government accountable will be able to thrive.”
There has been no action on HR. 1962, similar bipartisan legislation introduced in the House by Rep. Ted Poe (R-Texas). Poe’s bill, which has more than 40 cosponsors, contains a broader definition of journalist.