Federal shield bills have been introduced in the U.S. House and Senate that would limit the federal government’s power to subpoena journalists. News organizations and press freedom advocates are optimistic about the chances that a shield bill creating a privilege will become law.
The House bill, H.R. 985, was introduced Feb. 11, 2009, and the Senate bill, S. 448, was introduced Feb. 17, 2009. Both are titled the Free Flow of Information Act of 2009 and are identical to the shield laws put before Congress in its 2007 session. In October 2007, the House passed a bill identical to H.R. 985 by a vote of 398 to 21. That was the first time that the full U.S. House of Representatives voted on and passed a journalist’s shield bill. (See “House Passes Federal Reporter Shield Law” in the Fall 2007 Silha Bulletin.) The Senate version of the 2007 bill was approved by the Senate Judiciary Committee, but did not come to a vote before the Senate.
Both bills generally limit the federal government’s power to compel journalists to testify or disclose their confidential sources or information in civil or criminal proceedings, but they contain numerous exceptions and qualifications.
The privilege offered in S. 448 can be overcome in non-criminal proceedings if a federal court determines that the party seeking to compel the journalist’s testimony or disclosure “has exhausted all reasonable alternative sources;” if it is “essential to the resolution of the matter;” and “if the public interest in compelling disclosure of the information … outweighs the public interest in gathering or disseminating news or information.” Meanwhile, in a criminal investigation, the privilege offered by S. 448 can be overcome if reasonable alternative sources have been exhausted, compelling disclosure outweighs nondisclosure, and, additionally, (i) “there are reasonable grounds to believe that a crime has occurred,” (ii) the journalist’s testimony or disclosure is “essential” to the investigation or prosecution, and (iii) when, in an investigation of an “unauthorized disclosure of properly classified information,” the disclosure “has caused or will cause significant and articulable harm to the national security.” H.R. 985 contains almost identical exemptions, but uses the word “critical” instead of “essential.”
Both bills also include exceptions if a federal judge considers a journalist’s testimony or disclosure necessary to prevent specific or imminent death, kidnapping, or substantial or significant bodily harm; to prevent “an act of terrorism” or other significant and specified or articulable harm to national security; or when the information sought was obtained as a result of witnessing or committing a crime, unless the crime alleged was the communication of the information sought. This last provision could be interpreted as being meant to protect whistleblowers who provide classified or secret information to a journalist, even if sharing the information could be considered committing a crime.
H.R. 985 includes additional exceptions for situations when a journalist’s testimony or disclosure would identify a person who has disclosed a trade secret, “individually identifiable health information,” or “nonpublic personal information.” The House bill also states that it does not apply to “civil defamation, slander, or libel claims or defenses under State law, regardless of whether or not such claims or defenses … are raised in a State or Federal court.”
Both bills require that the testimony or information sought be “limited to the purpose of verifying published information” and be “narrowly tailored in subject matter and period of time covered.”
The privilege is granted to those defined as a “covered person.” Both bills define “covered person” as a person engaged in “the regular 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,” and they both explicitly exclude from that definition any foreign power, terrorist, or terrorist organization, as those terms are defined by federal law. Both laws include a covered person’s “supervisor, employer, parent company, subsidiary, or affiliate.” Neither bill provides a definition for what constitutes “local, national, or international events or other matters of public interest.”
Significantly, H.R. 985 additionally requires that a covered person be engaged in the listed activities “for a substantial portion of the person’s livelihood or for substantial financial gain.”
Both H.R. 985 and S. 448 also grant the same privilege and exceptions to communications service providers such as phone companies, Internet service providers, or online information content providers. If a subpoena is issued to a communications service provider for a third party’s records or information, such as a phone record or Internet protocol (IP) address, however, the third party must be given notice of the subpoena and given an opportunity to challenge it, unless the court determines that doing so would “pose a substantial threat to the integrity of a criminal investigation.” S. 448 limits the delay of notification to 45 days, but H.R. 985 has no limit. (For more on subpoenas to communications service providers, see “Subpoenas Seek to Identify Anonymous Web Site Commenters and Viewers” on page 21 of this issue of the Silha Bulletin.)
A coalition of press freedom advocates and media organizations supporting the federal shield law have expressed optimism about the bill’s chances with a new administration in Washington. In a Feb. 11, 2009 press release, the Society of Professional Journalists (SPJ) said it was “encouraged that President Obama has indicated his support for a federal shield law.” SPJ is among a number of organizations lobbying on behalf of a federal shield law, including the Newspaper Association of America, Reporters Committee for Freedom of the Press, Radio and Television News Directors Association, and Investigative Reporters and Editors. The National Press Photographers Association has a list of 71 organizations and media corporations that expressed support for the Free Flow of Information Act as of February 11, available at http://nppa.org/news_and_events/news/2009/02/coalition.html.
Then-Senator Barack Obama was a co-sponsor of the 2007 Senate shield bill, and he expressed support for a shield law in April 2008 while campaigning for president.
Attorney General Eric Holder said in his confirmation hearing before the Senate Judiciary Committee that he supports the idea of a federal shield law, the San Francisco Chronicle reported Jan. 16, 2009. In response to questions from Committee Chairman Sen. Patrick Leahy (D-Vt.), Holder said he would favor “a carefully crafted law to shield the press” that would leave the Justice Department with “the capacity to protect national security and to prosecute any leaks in intelligence that may occur,” the Chronicle reported. By contrast, then-Attorney General Michael Mukasey and other Bush administration officials had encouraged the former president to veto any federal shield law Congress passed.
According to a February 17 press release, Sen. Arlen Specter (R-Pa.), one of the Senate bill’s sponsors, called the shield law “necessary because we have seen in recent times a flurry of subpoenas being issued to reporters to disclose their confidential sources, and a reporter’s source of information really depends upon their being able to fulfill a commitment of confidentiality.”
Journalists who have fought federal subpoenas recently include Detroit Free Press reporter David Ashenfelter, who faces contempt and fines for refusing to disclose confidential sources related to his reporting on a high-profile terrorism trial, and former USA Today reporter Toni Locy, who was ordered to pay escalating fines of up to $5,000 per day before the D.C. Circuit threw out her contempt order in November 2008. (See “Ashenfelter Pleads the Fifth in Ongoing Effort to Protect Confidential Sources” on page 5 of this issue of the Silha Bulletin, along with “Judge Orders Michigan Reporter to Give Up Sources in Privacy Act Case” and “Court Throws Out Locy Contempt Order” in the Fall 2008 issue.)
For much more on the ongoing federal shield law issue, see the “Silha Bulletin Guide to Journalist’s Privilege,” a comprehensive guide to the legal history, rationale, and challenges for the privilege, published in the Spring 2008 Silha Bulletin. The Bulletin has extensively covered recent efforts to pass a shield law as well as numerous federal subpoenas to journalists. Please check the Bulletin archive online at http://www.silha.umn.edu/Bulletin/bulletinarchive.htm.
– Patrick File
Silha Fellow and Bulletin Editor