Reporter’s privilege

From the Winter 2009 issue of The News Media & The Law, page 8.

Congress is getting closer to passing a federal shield law that would protect reporters from revealing confidential sources and information, after efforts in the last Congress made historic progress — no shield bill had ever passed the House before, despite more than 100 attempts over the last few decades.

Two new bills have already been introduced this session. 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 398-21. Another bill, which mirrors a shield law that was approved by the Senate Judiciary Committee in 2007, was also introduced into the Senate in February.

The bill 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.

A First Amendment-based reporter’s privilege is recognized by some, but not all, federal courts. 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.

Previous shield bills 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.

President Obama said during the campaign that 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 attorneys within Justice who had expressed national security concerns.