Changes and fixes to new US journalism shield law

Posted by Nestor Bailly on November 6, 2009 at 4:00 PM

The "Free Flow of Information Act of 2009" is a a piece of legislation currently being worked out in the American Senate, and is aimed at both protecting journalists and national security interests by specifying under what conditions a journalist should be compelled to disclose a confidential source.

The main problems facing this act have apparently been worked out by the Specter-Schumer amendment.

First, the 'open-ended analysis' the court is supposed to undergo to determine whether to compel disclosure has been replaced with a 'more balanced and appropriate' process; The Attorney General must first ensure that the request for disclosure was made in accordance with the US Attorney's Manual. Then the journalist in question bears the burden to prove that disclosure would be contrary to the public interest, as the Manual already contains extensive journalistic protections. The Government must also show that all other means of obtaining the information essential for the investigation have been exhausted.

The amendment also, somewhat alarmingly, suspends the disclosure balancing test when the information required would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism. This means that when national security is deemed at risk, courts can order disclosure. However, whether to do this or not is still left at the court's discretion, as is the assessment of threat and the likelihood of prevention from disclosure.

Finally, and perhaps most relevant to most journalists, is the definition of a 'covered person,' those who are under the scope of this act and its protections. The definitions of the actions and intentions necessary to meet this qualification have been clarified, and now the definition of covered persons does not require them to be employees of or contractors to a media organization. So now, bloggers, students and citizen journalists can be protected by Federal Shield Laws.

Overall the amendment seems to be a mixed bag, with different parts protecting either journalists the Government and national security. Time will tell whether it will be passed into law, or go back to the drawing table.

Source: rcfp.org