The latest iteration of a federal reporter shield law, introduced in both the House and Senate, has gained support from media organizations, media advocates and Democrat and Republican lawmakers, but has critics and opponents both in the Bush administration and big business.
Identical bills were introduced on May 2, 2007 in both the U.S. House of Representatives and U.S. Senate bearing the short title The Free Flow of Information Act of 2007. The Senate bill, S. 1267, was sponsored by Senators Richard Lugar (R-Ind.) and Christopher Dodd (D-Conn.); the House bill, H.R. 2102, was sponsored by Representatives Mike Pence (R-Ind.) and Rick Boucher (D-Va.). It was approved and sent to the House floor by the House Judiciary Committee on August 1.
The bill approved by the House Judiciary Committee would protect journalists from compelled disclosure of confidential sources and information in federal criminal and civil proceedings. It says that the qualified privilege could be overcome if the information is needed to prevent “an act of terrorism” or “significant and specified harm to national security,” imminent death or bodily harm, or in order to reveal the sources of leaks of trade secrets of significant value, identifiable health information or other personal financial information revealed in violation of existing federal laws. Judiciary Committee amendments excluded defamation, libel and slander lawsuits from the bill’s protection, and extended the national security exception to threats to U.S. allies.
“Covered person” is defined in the bills as “a person engaged in journalism.” “Journalism” is defined as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
Boucher has said that Internet bloggers would be covered by this bill, provided they are engaged in newsgathering, according to a May 2 story on the Reporters Committee for the Freedom of the Press (RCFP) Web site.
This is the third time in as many years that reporter shield bills under the title The Free Flow of Information Act have been introduced, but the first time ever such a bill will go to the House floor for a vote, according to the RCFP. The language of the bill, whom it covers, and how it is limited have evolved during that time. According to a June 15, 2007 Associated Press (AP) story, sponsors of the current bill say they have tailored the exceptions, specifically those related to imminent harm to national security and death or bodily harm, to concerns raised by the Bush administration and the Department of Justice (DoJ).
The House Judiciary Committee held a hearing on the legislation on June 14, 2007. In his introductory comments, Pence said, “The Free Flow of Information Act is not about protecting reporters. It is about protecting the public’s right to know.”
At the hearing, testimony in support of the bill was presented by media lawyer and 2001 Silha Lecturer Lee Levine, longtime New York Times columnist William Safire, and Jim Taricani, a reporter for WJAR-TV, an NBC affiliate in Providence, R. I. who served four months house arrest for refusing to divulge his source for a video tape that showed corruption by public officials. (See “Reporters Privilege News: Journalist Sentenced to House Arrest for Refusing to Reveal Source” in the Fall 2004 issue of the Silha Bulletin.)
Safire and Taricani said that journalists are concerned that an increased willingness on the part of litigants, federal prosecutors, and courts to compel journalists to reveal their sources has restricted their ability to do their job and has created a “chilling effect,” as sources are reluctant to trust reporters, and news organizations fear subpoenas and expensive court battles.
“Don’t believe that ordinary citizens as well as public officials won’t think twice about trusting a reporter to respect a confidence,” Safire said, “it’s happening right now as never before.”
Levine’s testimony cited evidence showing more aggressive pursuit of journalists’ confidential sources since 2001.
“There appear to have been only two decisions from 1976 to 2000 arising from subpoenas issued by federal grand juries or prosecutors to journalists seeking confidential sources. Both involved alleged leaks to the media and in both, the subpoenas were quashed,” Levine’s testimony said. “Yet, beginning in 2001, four federal courts of appeals have affirmed contempt citations issued to reporters, each imposing prison sentences more severe than any previously known to have been experienced by journalists in American history.”
The list of sentenced journalists, according to Levine, includes Vanessa Leggett, who served 168 days for civil contempt in 2001; Taricani, who served four months for criminal contempt in 2005; Judith Miller, who served 85 days for civil contempt in 2005; Joshua Wolf, who served 226 days for civil contempt in 2006 and 2007; and BALCO journalists Lance Williams and Mark Fainaru-Wada, who were facing 18 months for civil contempt before their confidential source came forward in early 2007. (Coverage of all these cases can be found in previous issues of the Silha Bulletin. See the archive at www.silha.umn.edu.)
Levine’s testimony also offered a list of instances where the public interest has been served by the use of confidential sources by reporters, from Watergate and the Pentagon Papers case in the 1970s, to more recent stories such as the Enron scandal, abuse at Abu Ghraib prison, conditions at Walter Reed Army Medical Center, and BALCO.
“Needless to say, the prospect of substantial prison terms and escalating fines for honoring promises [of confidentiality] to sources threatens this kind of journalism,” Levine said.
Assistant Attorney General Rachel Brand, in testimony on behalf of the DoJ, said the bill would “upset [the] balance” that existing policies strike between a free flow of information and fair and effective law enforcement, resulting in the unnecessary protection of unauthorized leaks and disclosures of sensitive information and, ultimately, threats to national security.
Brand’s testimony said that DoJ guidelines, codified at 28 C.F.R. section 50.10 “demonstrate how seriously the Department takes any investigative or prosecutorial decision that implicates ... members of the news media.”
Under the guidelines, Brand said, the U.S. Attorney General must personally approve all contested subpoenas directed to journalists, following a “rigorous and multi-layered internal review process.
“Only after all reasonable attempts have been made to obtain information from alternative sources and negotiations for voluntary production have failed may a prosecutor seek permission to issue a subpoena to the media,” Brand’s testimony said.
Brand said the effectiveness of these guidelines and the limits they place on the availability of subpoenas to the media refutes the argument that freedom of the press and the free flow of information to the public have been restricted.
Quoting Branzburg v. Hayes, 408 U.S. 665 (1972), the only time the U.S. Supreme Court has addressed reporter privilege under the First Amendment, Brand’s testimony said, “estimates of the inhibiting effect of … subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative.”
Brand also said the bill’s definitions of “covered person” and “journalism” offer a privilege with no regard for nationality, affiliation, occupation, and profession.
“Such a broad definition would accord the status of ‘covered person’ to a terrorist operative who videotaped a message from a terrorist leader threatening attacks on Americans, because he would be engaged in recording news or information that concerns international events for dissemination to the public,” Brand said.
According to a June 15, 2007 San Francisco Chronicle story, House Judiciary Committee Chairman John Conyers (D-Mich.), in an interview following the hearing, challenged the DoJ assertion that terrorists would be protected by the shield law.
“Who would believe that Hamas would be allowed in federal court to claim that they had the use of the shield to protect them?” said Conyers. “It’s totally absurd and without any basis whatsoever.”
Randall D. Eliason, a Professorial Lecturer in Law at George Washington University Law School who testified against the bill, said in his testimony that from an historical perspective, media advocates’ concerns about a chilling effect were unfounded.
“Proponents of a privilege often cite the importance of confidential sources to the reporting of such historic events as Watergate, the Pentagon papers, or the Iran-Contra scandal. What they usually fail to note is that those stories all were reported despite the lack of any federal reporter’s privilege law,” said Eliason.
Eliason also said the actions of BALCO reporters Lance Williams and Mark Fainaru-Wada were “deplorable, not heroic,” because they assisted defense attorney Troy Ellerman with the illegal leak of grand jury testimony, and because they knew that Ellerman lied when denying knowledge of the leak in a sworn statement to a judge but failed to report it when the defense blamed prosecutors for the leak.
Eliason said a federal shield law would not prevent journalists from going to jail. “Journalists don’t go to jail simply because of the lack of a federal reporter’s privilege,” Eliason’s testimony said. “They go to jail in part due to a professional culture that insists on an absolute privilege, chastises reporters who comply with court orders to testify, and lionizes those who defy the law as martyrs for the First Amendment. Passage of a federal privilege law will not alleviate that problem.”
According to San Francisco Chronicle Editorial Page Editor John Diaz, the U.S. Chamber of Commerce, the National Association of Manufacturers, beverage companies, and tire makers have hired lawyers and a public relations firm from Washington D.C. to challenge the Free Flow of Information Act of 2007. Diaz said in a July 15 column following an interview with Phil Goldberg, an attorney from the firm Shook, Hardy & Bacon who represents the business groups who oppose the bill, that they are proposing amendments that would offer journalists no shield for the disclosure of any trade secrets or proprietary information.
Forty-nine states and the District of Columbia have recognized at least a qualified reporter privilege in the common law. Thirty-three states and the District of Columbia have shield laws, according to the Reporters Committee for the Freedom of the Press. Maryland passed the first such statute in 1896. Washington state’s new shield law went into effect on July 22, 2007.
According to Levine’s June 14 testimony, “the experience of the states demonstrates that shield laws have no material impact on law enforcement or on the discovery of evidence in judicial proceedings, criminal or civil.”
– Patrick File, Silha Fellow and Bulletin Editor