Free Flow of Information Act
On March 31st, the House passed the Free Flow of Information Act, H.R. 985 - a critical bill that provides a federal media shield. The bill would provide journalists with a qualified privilege as to sources and information, while at the same time, recognizing the need for effective law enforcement and robust national security.
Freedom of the press is fundamental to our democracy and is essential to protecting the public's right to know. Without a federal media shield law to protect the confidential sources of journalists, freedom of the press is threatened. This carefully balanced bipartisan bill will provide a qualified privilege for journalists protecting confidential sources but will also protect our national security and effective law enforcement.
Journalists would have to testify in cases in which obtaining the information in question is necessary to prevent acts of terrorism, breaches of national security, imminent death, or severe bodily harm. Confidential sources exposing corruption, waste, and mismanagement have been critical in a number of key stories, including the Walter Reed Army Medical Center, Abu Ghraib prison scandal, Watergate and Iran-Contra.
For confidential sources, this bill signals that they will be protected in revealing evidence of waste, fraud and abuse, in both government and the private sector, to news organizations.
Almost every state has a media shield law, with 32 states and the District of Columbia with laws similar to this bill, but there is no federal statute protecting reporters' right to keep sources confidential.
This bill:
The bill protects journalists’ sources unless there is a strong public interest in compelling disclosure. The bill requires journalists to testify at the request of criminal prosecutors, criminal defendants and civil litigants who have shown by a preponderance of the evidence that they have met the various tests for compelled disclosure. Prosecutors would have to show that they had exhausted alternative sources before demanding information. They would need to show that the sought-after material was relevant and critical to proving a case, and that the public interest in requiring disclosure would outweigh the public interest in news gathering.
The bill is carefully balanced – protecting national security and law enforcement. The bill contains provisions to ensure that the privilege would not impair law enforcement’s efforts to prevent acts of terrorism, threats to national security, and death or bodily harm to members of the public, or to identify a person who has disclosed significant trade secrets or certain financial or medical information in violation of current law. Under the legislation, terrorists and terrorist organizations cannot use the media shield.
The bill includes special rules for cases involving leaks of classified information and where the journalist witnesses the crime. The bill will enable federal law enforcement authorities to obtain an order compelling disclosure of the identity of a source in the course of an investigation of a leak of properly classified information. The bill provides that the disclosure of a leaker’s identity can be compelled whenever the leak has caused or will cause “significant and articulable harm to the national security.” The bill also permits law enforcement to obtain an order compelling disclosure of documents and information obtained as the result of eyewitness observations of alleged criminal or tortious conduct by journalists, as well as criminal conduct by journalists themselves.
Over the last few years, more than 40 reporters have been subpoenaed for the identities of confidential sources in nearly a dozen cases, with some actually going to jail. New York Times reporter Judith Miller was imprisoned from July to September last year for contempt of court for failing to comply with a court order to identify her source in stories that she wrote for the Times regarding the disclosure of the identity of former Central Intelligence Agency covert agent Valerie Plame Wilson.
Media shield laws have worked on the state level without hampering law enforcement or national security. 49 states and the District of Columbia recognize a reporter’s privilege either through state laws or court decisions. In a brief filed with the Supreme Court, a bipartisan group of 34 state attorneys general pointed out that the lack of a clear standard in federal court is undermining state laws. The legislation is a reasonable and well-balanced approach that will provide much needed clarity at the federal level.