Shield law re-introduced in House

Samantha Fredrickson | Reporter's Privilege | Feature | February 11, 2009

A federal shield law that would protect reporters from revealing confidential sources was  re-introduced in Congress today.

The Free Flow of Information Act of 2009 is identical to the shield law that passed the House in the 110th Congress by a vote of 398 to 21. A similar bill was also approved by the Senate Judiciary Committee by a vote of 15 – 4, but died when the congressional session ended last year.

Today’s bill was introduced into the House of Representatives by Rep. Rick Boucher (D-Va.), Rep. Mike Pence (R-Ind.), Rep. John Conyers (D-Mich.) and Rep. Bob Goodlatte (R-Va.). The bill has 35 co-sponsors.

“The absence of federal legislation protecting reporters' sources limits the public's access to information which is vital to the functioning of a democratic society,” Boucher said in a statement released today. “The press allows citizens to serve as watchdogs, speaking out about and exposing what are often illegal, corrupt, or dangerous activities by both private and government actors.”

The law would provide a qualified reporter’s privilege, with exceptions for national security, terrorism, the prevention of bodily harm, and eyewitness testimony from a crime scene.

“As a conservative who believes in limited government, I believe that the only check on government power in real time is a free and independent press,” Pence said in a statement.

Though 36 states and the District of Columbia have some type of state shield law, there has never been any federal statutory protection. A First Amendment-based reporter’s privilege is recognized by some, but not all, federal courts, thus illustrating the need for a federal bill.

Reporters in recent years have been held in contempt and slapped with hefty fines or sent to jail for refusing to reveal sources in federal judicial settings. Currently, a Detroit Free Press reporter, David Ashenfelter, is fighting a subpoena for confidential source information in a federal court in Detroit.

When the previous shield laws were introduced, they were met with fierce opposition from the Department of Justice, which argued that the department's own guidelines for subpoenaing reporters provided sufficient protection. Former President Bush also threatened to veto the bills. 

However, President Obama has said he supports a federal shield law. Attorney General Eric Holder also said during his confirmation hearing that he supported such a measure, but would need to consult with the attorneys within Justice who had expressed national security concerns.