Free press in the free world: Cracks widen in proposed Journalist Shield Law

Posted by Nestor Bailly on October 5, 2009 at 12:00 PM

A new federal law shielding journalists from subpoenas and imprisonment regarding confidential sources has met with difficulties under the definition of a 'journalist' in the Senate and the Obama administration's opposition to shielding in 'matters of national security.'

The Free Flow of Information Act (H.R.985) is a bi-partisan bill aimed at protecting journalists from being imprisoned or fined when they refuse to reveal their confidential sources. In official legalese, the headline of the Act is "to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media."

Basically it prevents federal courts (many U.S. states already have such shield laws in place) from forcing journalists to reveal sources or information without the judge carefully 'balancing' the necessity of the evidence withheld. Although the bill has passed the House of Representatives it currently faces two problems: definitional issues in the Senate and opposition from the White House.

Again, the official text; "Conditions for Compelled Disclosure- In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person..." a list of exceptional circumstances follow that would merit 'compelled disclosure,' including terrorist threats and that the prosecution has exhausted all other means of gaining evidence.

The above quoted text contains the two issues that now face the bill. The first is an amendment proposed by Sen. Schumer (D NY) that limits the definition of 'journalist,' the 'covered person,' to professionals who gain the majority of their income by gathering news and information. The amendment, quickly adopted, excludes bloggers, student journalists and part-time journalists, basing definition on employment rather than engagement with the journalistic practice.

Second is the White House's opposition to the bill, manifested by a draft of Bill changes presented to Congress that scales back protection when issues of national security are deemed involved. Under the administration's version, a reporter could be compelled to reveal sources if public disclosure of the sources' information "caused or [was] reasonably likely to cause significant and articulable harm to national security," claims the Washington Post. In such cases, there would not be a "balancing test," in which a judge weighs the importance of the public having the information against the damage it could cause national security; the government would only have to show the judge that the information was protected and "reasonably likely" to cause the damage, in essence forcing a impartial judge to be deferential towards the executive branch of government.

The proponents of the Bill, including Sen. Schumer, have expressed disapointment at the administration's position. "The White House's opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation," said Schumer.

Senator Arlen Specter of Pennsylvania, another advocate of the Bill, wants open discussion of the proposed Bill. "If the president wants to veto it, let him veto it," Specter said. "I think it is different for the president to veto a bill than simply to pass the word from his subordinates to my subordinates that he doesn't like the bill."

Advocates of the law argue that it is in the public interest to allow reporters to protect confidential sources in order to bring important information to light. Opponents note that the unauthorized disclosure of classified information is illegal, and that members of the news media should not be allowed to decide whether exposing national security secrets is justified.

Sources: New York Times
Washington Post
Nieman Journalism Labs
The Reporters Committee for Freedom of the Press