RCFP: Federal shield law moves out of House committee

NEWS MEDIA UPDATE U.S. · March 25, 2009 · Reporter's privilege

Federal shield law moves out of House committee

The House Judiciary Committee on Wednesday approved a federal shield bill that aims to protect journalists from compelled disclosure of their confidential sources, in language identical to that of a 2007 bill that overwhelmingly passed the U.S. House of Representatives. The new bill heads next to the floor for a new, full House vote.

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The Free Flow of Information Act of 2009, or H.R. 985, would offer a qualified privilege for journalists, meaning they could not be compelled to identify sources or hand over confidential material except under several scenarios: If doing so would prevent harm to national security, or death or bodily harm; if it were essential to the investigation, prosecution or defense of a crime; if it were deemed "critical to the successful completion" of a legal, non-criminal issue. Also, a reporter could be pressed for confidential information if it were necessary for pinpointing who leaked trade secrets, certain health data or classified national security information.

The bill defines a journalist as someone who "regularly" reports and writes "for a substantial portion of the person's livelihood or for substantial financial gain."

Currently, 36 states and the District of Columbia have similar protections in place, and Rep. Rick Boucher (D-Va.), who introduced the identical H.R. 2102 in 2007, stressed the importance of bringing a reporter's privilege to the federal courts as well. Boucher and Rep. Mike Pence (R-Ind.) both advocated for the last bill, which died with the 110th Congress since the Senate never voted on it.

Even though the House overwhelmingly passed the 2007 version with a 398 to 21 vote, some Republicans on Wednesday voiced concern over the new bill. Rep. Lamar Smith (R-Texas), a former newspaper reporter and one of the 21 who opposed the 2007 bill, contended that the national security provision did not go far enough. In reference to the law enforcement exemption, he asserted that a shield law would give reporters a "special privilege at the expense of our national crime-fighting efforts."

Rep. Steve King (R-Iowa), who also opposed the 2007 bill, asserted that a shield law would give journalists their own version of an attorney-client or doctor-patient privilege -- something he said he found troubling, since journalists are not licensed. Boucher responded by pointing out that attorneys' and doctors' privileges are conferred by states, not the federal government.

Among supporters for the bill, though, was Rep. Bob Goodlatte (R-Va.), who lauded the language for specifically addressing national security concerns and said a federal shield law would encourage whistleblowers to be forthcoming.

Boucher said the House could vote on the bill by the end of the month. A Senate version of the shield bill awaits action by the Judiciary Committee.

— Ahnalese Rushmann, 6:40 pm

Comments: (1)

Comment by Author, Wed, Mar 25, 2009, 8:01pm

As an author who has been deposed, it was quite apparent that some questions asked were irrelevant and unnecessary, and could have been directed at determining the identity of innocent and uninvolved third parties to harass in order to punish me for providing factually accurate testimony in the case in question (I was a witness and expert, not a party).

The reality is that nobody is going to talk to reporters and authors if they don't have priviledge and this will corrode the fabric of democracy. The need for priviledge is just as powerful as the need for it in attorney-client situations, doctor-patient situations, and in marriages between husband and wife.

The real issue is simply how to handle situations sucha s that Dr. Hatfill faced when very obviously and overtly libeled by the press and undsiclosed law enforcement officials. In that particular case I think justice was done by the payment of millions of dollars, and an admission he really was innocent, without the need to inhibit the free flow of information to the press by forcing that sources be named.

Priviledged communication is not something that should be tied to licensure - it should be tied to society's need for candor in certain kinds of communications in order for public order to be maintained and progress to be possible. Since the courts do not as a rule regulate discovery very much and permit it to be very wide ranging and speculative, the only legitimate solution is for the identities of information sources to be kept confidential.

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