RRA became one of 71 media organizations and companies to endorse the
newly introduced “Free Flow of Information Act”, the latest proposal
to create a reporters privilege or “shield law” applicable to federal
proceedings. There have been several attempts to pass a shield law in
recent years, spurred on by contempt charges levied against reporters
in high profile cases throughout the country (David Ashenfelter of the
Detroit Free Press faces jail time and other sanctions for refusing to
testify about information contained in several stories from 2004
regarding the Justice Department’s investigation of an Assistant
United States Attorney in Michigan). The legislation is coming off a
strong, yet ultimately unsuccessful run in the 110th Congress, where
HR 2102 passed the House by a vote of 398-21 and the slightly
differing S 2035 passed the Senate Judiciary. Time ran out on both
proposals after a Senate floor vote could not be scheduled.
The introduction of HR 985 on Wednesday, February 11 restarts this
process. HR 985 is identical to its predecessor (we expect that the
Senate will introduce a bill identical to S 2035 in the near future).
It’s primary co-sponsors are Reps. Rick Boucher (D-VA) and Mike Pence
(R-IN), both longtime stalwarts of this effort. However, there are 38
original co-sponsors, including House Judiciary Chairman John Conyers
(D-MI) and Ranking Member Bob Goodlatte (R-VA).
The RRA Board vote that formalized the organization’s endorsement
reflected the view of many in the media community regarding the Free
Flow of Information Act. Board members opposing the endorsement
expressed opinions that ranged from a desire to avoid any requests for
specific help to the media from Congress to disappointment that the
bill does not go far enough to protecting reporters. The latter comes
into play because the bill offers a “qualified privilege” which can
still result in the reporter being required to testify in certain
circumstances. Ultimately, the prevailing Board view was that this
legislation, if enacted into law, will greatly benefit every reporter
in the country by removing the uncertainty and confusion that exists
when a reporter called into state-level court in 49 states or the
District of Columbia has a shield law or judicially created privilege
at his or her disposal, but remains unprotected if called to testify
in a federal proceeding.
The qualified privilege will apply in all federal judicial,
legislative and administrative proceeding to anyone “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.” The privilege
itself protects the reporter from having to testify unless it can be
shown by a preponderance of the evidence that:
· The information sought is critical to a criminal case or
that it is dispositive of an issue in civil case; and
· If all other sources for the information have been exhausted.
If the information sought would identify a confidential source or lead
to the revelation of the identity of a confidential source, the
reporter can be forced to testify if necessary to:
· Prevent or identify any perpetrator of an act of terrorism
against the United States or its allies or other significant and
specified harm to national security;
· Prevent imminent death or significant bodily harm;
· Identify a person who has disclosed:
– A trade secret of significant value in violation of State or Federal law,
– Personal health information in violation of Federal law, or
– Personal financial information in violation of Federal law;
· Identify the source of a leak of classified information,
where the leak has caused or will cause significant or articulable
harm to the national security.
In addition, the court will balance the public interest in compelling
the reporter to testify against the public’s interest in gathering and
disseminating news.
We’ll keep you posted on the progress of this effort and would love to
hear your thoughts as well.
