On Oct. 16, 2007, the U.S. House of Representatives voted overwhelmingly in favor of the Free Flow of Information Act, a bill that would establish for the first time a federal privilege for reporters and their confidential sources.
The measure passed the House 398 to 21. Despite strong bipartisan support, the bill still has hurdles to overcome, including a Senate vote, possible committee revisions, and a promised veto from President George W. Bush.
The version of the Free Flow of Information Act that passed the house, H.R. 2102, would limit the federal government's power to subpoena journalists to testify or disclose confidential sources or information in civil or criminal proceedings.
The privilege can be overcome, however, when the party seeking the information can prove that all other reasonable sources of the information have been exhausted and the information sought is "critical" to an investigation, prosecution, or defense. The bill empowers federal courts with the authority to determine when "the public interest in compelling disclosure of the information ... outweighs the public interest in gathering or disseminating news or information" and to make determinations concerning the extent of possible harm to national security.
Lawmakers also added a number of specific exceptions to the privilege, which would apply under various circumstances. It may be overcome, for example, when the information relates to a crime under existing federal law that the journalist witnessed or committed, including the unauthorized disclosure of classified information that has caused or will cause "significant and articulable harm to the national security;" disclosure of a "trade secret, actionable under section 1831 or 1832 of title 18, United States Code;" disclosure of "individually identifiable health information;" or of "nonpublic personal information."
The privilege may also be overcome when disclosure of the identity of a source is "necessary to prevent or to identify any perpetrator of an act of terrorism against the United States or its allies or other significant and specified harm to national security" or when the disclosure is "necessary to prevent imminent death or significant bodily harm."
The bill also states that the privilege does not apply in the context of civil defamation, slander, or libel claims, or defenses raised in federal or state courts.
According to the Los Angeles Times on October 17, sponsors of the Free Flow of Information Act Rick Boucher (D-Va.) and Mike Pence (R-Ind.) strengthened the bill's national security exceptions in response to concerns raised by the Bush administration and the Department of Justice.
Despite these concessions, however, President Bush released a statement the same day the bill passed, October 16, threatening to veto it if passed in its current form.
"The Administration believes that H.R. 2102 would create a dramatic shift in the law that would produce immediate harm to national security and law enforcement," the statement said. "The legislation would make it extremely difficult to prosecute cases involving leaks of classified information and would hamper efforts to investigate and prosecute other serious crimes."
Bush's nominee for U.S. Attorney General, Michael Mukasey, echoed those concerns in his confirmation hearing on October 18, according to The Associated Press (AP). Mukasey said he would prefer to adjust Justice Department practices, if need be, rather than adhere to a shield law.
"One thing about internal procedures is that if you need to change them they're relatively easy to change," Mukasey said. "It becomes much harder when it's etched in stone in the form of legislation. And that is part of the reason for my unease."
Mukasey also said the Free Flow of Information Act defines those covered by the shield too broadly and might inadvertently protect, for example, bloggers who are also spies or terrorists.
H.R. 2102 defines a "covered person" as "a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person."
The bill also explicitly excludes foreign powers, agents of foreign powers, and members of terrorist organizations as defined by federal law.
According to an October 16 article on the Web site Cnet.com, the bill's sponsors tailored the "covered person" definition to exclude "casual" bloggers. Those who report for a blog "regularly" and "for a substantial portion of [their] livelihood or for substantial financial gain," however, would presumably be covered.
Critics of the House bill's definition of "covered person" argue that it is too restrictive and is "means tested." According to Tim Rutten, a columnist for the Los Angeles Times, "it's hard to imagine any American court accepting the notion that our Constitution protects only the speech of those who make money from it."
In an October 20 column, Rutten said a shield law that protects traditional print and broadcast journalists but not "citizen journalists" or bloggers "is swimming against the tide of history in a silly - perhaps, even wicked - fashion."
According to Editor & Publisher magazine and the AP, advocacy groups, professional organizations, and media who support the bill such as the Reporters Committee for Freedom of the Press (RCFP) and the Society of Professional Journalists (SPJ) say the impetus for the bill was the more than 40 cases in the past three years where reporters have been asked to identify sources or testify in federal criminal and civil cases.
"This law is in the interest of democracy," said SPJ President Clint Brewer in an October 16 press release. "Journalists must be able to protect confidential sources in order to truly report on the operations of our government. This will allow journalists to do their jobs without fear of prosecution from the very federal government they are covering."
Although October 18 was the first time a reporter privilege bill has come to a vote, it is not for lack of attention to the issue. In 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes, 408 U.S. 665 (1972), that journalists who have witnessed criminal activity may not claim a constitutional privilege to refuse to testify or disclose confidential information or sources before a federal grand jury. According to Gregg P. Leslie, Editor of the RCFP publication The News Media and the Law, over 100 proposed federal shield bills have been introduced in the U.S. Congress in the last 30 years.
Thirty-three states and the District of Columbia have some form of shield law. Forty-nine states and the District of Columbia have recognized at least a qualified reporter privilege in the common law.
For more on the development of the Free Flow of Information Act of 2007, see "Proposed Federal Shield Law will go to House Floor; Justice Department and Big Business Offer Criticism," in the Summer 2007 Silha Bulletin.
- Patrick File, Silha Fellow and Bulletin Editor