A shield advances

How would the federal shield bill that passed the Judiciary Committee affect journalists?
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Cindy Gierhart

AP Photo by Mark Lennihan

Editorial employees walk through the headquarters of The Associated Press in New York. The Justice Department secretly obtained the wire service’s telephone record, prompting the recent battle for a federal shield law for journalists.

Since the Senate Judiciary Committee passed an amended version of a federal shield bill in September, commentators have largely focused on who qualifies as a journalist under the bill. While it is an important question, it is not the only question journalists should be asking.

The proposed federal shield bill, known as the Free Flow of Information Act of 2013, is a lengthy bill with a number of provisions. Even if an individual qualifies as a journalist initially, he or she might lose protection due to any one of the bill’s exceptions.

At its core, the bill protects journalists from having to disclose confidential sources or material in court. It is similar to a spousal privilege or attorney-client privilege, in that the law recognizes there are certain instances when the public interest in not testifying outweighs the parties’ interest in having a person testify.

The public interest in not forcing journalists to reveal their sources is found in the need for journalists to be able to freely gather and disseminate information to the public. If individuals fear they will later be identified in court for disclosing information to journalists, they will stop coming forward.

Even if individuals do not qualify for protection under the bill, if faced with a subpoena to appear in court or hand over information, they are in no worse position than they are in now. The bill would add privileges for some but take nothing away from those who do not qualify.

Coverage under the bill comes down to several key questions.

Are you a “covered journalist”?

Much of the volley surrounding the shield bill has been on the issue of who qualifies as a journalist under the bill. Sen. Ted Cruz (R-Tex.) thought those covered by the bill should be defined by their actions and not by their job title. Therefore, a person who had the primary intent at the start of the process to investigate events and disseminate information to the public would qualify for protection.

Sens. Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.), on the other hand, thought there should be some limits as to who could qualify. Feinstein, for example, said at the Senate Judiciary Committee meeting that her press secretary and the “occasional blogger” should not be given a privilege under the bill. Sen. Cruz thought “citizen bloggers” should be covered and voted against the amendment to the bill for that reason.

AP Photo by Manuel Balce

Sen. Ted Cruz, R-Texas, said that those covered by the bill should be defined by their actions and not by their job title.

Feinstein and Durbin’s amendment prevailed in the end. But it does not necessarily exclude bloggers, as Cruz indicated. The version of the bill that passed the committee and is now before the full Senate defines a “covered journalist” in three ways, any of which will qualify the person for protection under the bill.

First, a person is covered by the bill if he or she is “an employee, independent contractor, or agent of an entity or service that disseminates news or information . . .”; gathers information with the primary intent to investigate events and disseminate information to the public; and engages in regular newsgathering.

Significantly, the word “salaried” was deleted from an earlier version, so a person need not be paid to qualify for protection. The reporting medium can take many shapes, from the traditional newspaper or broadcast to a nonfiction book, news website, mobile application, or other news or information service.

Sen. Cruz criticized this language at the Senate Judiciary Committee meeting, noting, “Essentially as I understand this amendment, it protects what I would characterize as the corporate media.”

While the definition certainly covers a reporter for The New York Times, it also covers a sole proprietor and writer of a news website who works from her living room and receives no pay. A freelance photographer who photographs a house fire hoping to publish it with a news medium and who regularly photographs newsworthy events for publication would qualify under the bill. In contrast, a neighbor who photographs the same house fire to show his friends would not be covered by the bill.

A second avenue through which a person may be covered is when a person formerly worked as a journalist and is now working independently. Specifically, a person is covered if he or she worked for a news entity for 1 year within the past 20 years or for 3 months within the past 5 years — and gathered news or information on matters of public interest with the intent to disseminate it to the public.

The third avenue is through a catchall provision, which states that a judge may decide that anyone who does not fit the other two definitions can still qualify for protection if doing so “would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.” This provision allows a judge the discretion to decide anyone, especially non-traditional journalists, could be covered.

That answers the question of who qualifies for protection, but that is only the beginning of the inquiry.

Are you in federal or state court?

It is somewhat obvious but worth reminding that the federal shield bill applies in federal court. Presently, 39 states and the District of Columbia have state shield laws, and another 10 states offer some protection developed through case law. That leaves only Wyoming with no statutory or case law protection, but that is likely only because the issue has not arisen there (there is no known case of a reporter being jailed or fined for not testifying in Wyoming).

There has never been a federal shield law, though Congress has introduced—and ultimately rejected—numerous bills since the Supreme Court first held in 1972 that journalists have no special privilege under the First Amendment beyond the average citizen.

Yet there is not a void for journalists at the federal level, either. Rather, some federal circuits recognize a non-statutory reporter’s privilege, but the circuits vary widely as to whether they recognize a privilege at all and, if so, who is covered and under what circumstances. A federal shield law would offer consistent and, in many cases, stronger protection across the circuits.

Is the case criminal or civil?

Because individuals charged with a crime have a constitutional right to confront their accusers, it is generally more difficult for journalists to keep their sources confidential in criminal cases than in civil cases.

According to the current Senate version of the shield bill, for a court to force journalists to reveal their sources in both civil and criminal cases, the party asking for the information must have “exhausted all reasonable alternative sources” (i.e., tried and failed to find the information elsewhere), and the information sought must be “essential” to the case.

But in a criminal case, the journalist has the burden of additionally showing that disclosure would be “contrary to the public interest.” In contrast, in a civil case, the party asking for the information — not the journalist — has the burden of showing that the interest in disclosure “clearly outweighs” the public interest in gathering and disseminating news.

So, in a civil case, if the party seeking the information cannot prove its burden, the journalist automatically wins. In a criminal case, if the journalist cannot prove his or her burden (assuming the other elements are met), the other party automatically wins.

Is your source confidential?

The proposed federal shield bill only protects confidential communications — that is, information that would identify a person who was promised confidentiality or documents or other material that were obtained in exchange for a promise of confidentiality. Therefore, if a court seeks information regarding a source who was named in the publication or documents that were given to the journalist without promise of confidentiality, then the journalist cannot seek protection under this bill.

That does not necessarily mean that journalists have no federal protection when it comes to non-confidential sources or material. The proposed bill explicitly states that it will not interfere with any law or court decision that protects non-confidential communications. Any federal circuit that currently protects non-confidential information — and some do — may continue to do so after the shield law is enacted.

While the circuits vary in how much protection they offer non-confidential communication — if any — it is generally true across all circuits that non-confidential has fewer protections than confidential information. In the Second Circuit, for example, a party seeking non-confidential information need only show that the information is likely relevant to a significant issue in the case and that the same information could not reasonably be obtained from other available sources.

Despite this low bar, the Second Circuit ruled recently in In re McCray that “Central Park Five” documentary filmmakers did not have to turn over outtakes, even though the information was not confidential. On the other hand, the D.C. Circuit ruled just days before in Klieman v. Palestinian Authority that the BBC had to turn over documentary outtakes, largely because the information was not confidential — though the D.C. Circuit does protect non-confidential information in some instances.

As a word of caution, revealing the identity of a source to others outside your news organization, even to a friend or neighbor, could cause your information to lose its confidential status. Even under New Jersey’s strong shield statute, the court in In re Venezia ruled in 2007 that a reporter “waived” his privilege by disclosing the information to a prosecutor and city attorney in a separate but related criminal matter, so he could not keep that same information private when requested for a civil matter.

Other states have come to similar conclusions (e.g., Pinkard v. Johnson in Alabama, Wheeler v. Goulart in the District of Columbia, and In re Dan in New York). Therefore, it is best not to disclose confidential information to anyone beyond an editor or collaborator; otherwise, you may have to disclose it to the court, as well.

Could the information you hold prevent acts of terrorism or acts that could cause “significant and articulable harm to national security”?

In a criminal investigation or prosecution by the federal government for the disclosure of classified information, under the proposed shield bill, a court may order a journalist to disclose information if that information would help the government in “preventing or mitigating” an act of terrorism or other acts likely to cause “significant and articulable harm to national security.”

In criminal investigations and prosecutions not involving the disclosure of classified information, the same rule applies, although the government additionally may force a journalist to disclose information if it could help the government in “identifying the perpetrator of” terrorist acts or other dangers to national security.

This means that, under the proposed bill, the federal government cannot force a journalist to identify the person who disclosed classified documents just for the sake of identifying the leaker. (But the government can force a journalist to testify for the sole purpose of identifying the perpetrator of any other type of crime.)

Were this provision currently law, it could potentially help New York Times reporter James Risen, whom the Justice Department has subpoenaed in the leaks prosecution of former CIA officer Jeffrey Sterling.

The government would not be able to force Risen to testify for the sole purpose of identifying who disclosed classified documents to him. However, if the government could show that his testimony could prevent future harm to national security, then Risen would have to testify. Importantly, the proposed bill explicitly states that the potential for the leaker to disclose more information in the future is not in itself, without further proof, sufficient to prove future harm to national security.

Could the information you hold prevent death, kidnapping, substantial bodily harm, a crime against a minor, or destruction of critical infrastructure?

A journalist will have to disclose information if it is “reasonably necessary to stop, prevent, or mitigate” death, kidnapping, substantial bodily harm, specified crimes against minors, or the incapacitation or destruction of critical infrastructure.

This exception largely speaks for itself. If you interviewed someone who confessed to kidnapping a child and keeping her in his house, the court could order you to disclose the identity of the person, so that the police could find the child.

Are you publishing unauthorized documents without analyzing them?

This is the so-called “Wikileaks exception.” To qualify for a journalist’s privilege, you have to engage in traditionally journalistic activities. That means explanation, analysis, description, and original photography or videography. It does not mean uploading leaked documents without further analysis.

The proposed bill does not shield anyone whose “principal function . . . is to publish primary source documents that have been disclosed . . . without authorization.” Therefore, Wikileaks founder Julian Assange would not be able to claim privilege under the proposed bill. However, a journalist reporting on Wikileaks and the material posted on Wikileaks could claim a privilege.

Is the information relating to your own criminal charge?

The proposed shield bill does not protect journalists who themselves are charged with a crime. If a journalist has a recording of himself offering a bribe or robbing a bank, he cannot claim privilege under the proposed shield bill in his own criminal prosecution.

This exception does not apply if the journalist’s only “crime” was communicating the documents or information. This clarification seemed necessary given the surprising revelation in the summer of 2013 that the government labeled Fox News reporter James Rosen a “co-conspirator” simply because he reported on national security secrets disclosed to him by a former State Department contractor. Under the proposed bill, if Rosen ever were charged with a crime for communicating leaked documents — which would be exceptionally unlikely — he could still claim a privilege under the proposed bill.

What is different now from 2010, the last time the bill failed?

Many are optimistic that the shield bill will finally pass this time around. The reason: the climate has changed significantly in the past three years. The failure of the 2009 bill (carried over into 2010) is largely attributed to the Wikileaks saga that began to unfold in the spring of 2010. Members of Congress lost their enthusiasm for protecting confidential sources in the face of one of the largest breaches of national security.

In 2013, legislators have no less concern over protecting national security, but they have crafted the language of the bill so as to exclude Wikileaks-type disclosures and other harms to national security. Some, like Sen. Jeff Sessions (R-Ala.), still think the bill doesn’t go far enough to protect national security, but others, such as Sens. Feinstein and Durbin, who initially had hesitations about the bill, are satisfied with the amended version.

Also, the bill was revived in large part as a reaction to the revelation in the summer of 2013 that the Department of Justice had secretly obtained Associated Press (AP) phone records and seized a Fox News reporter’s Gmail account. The news stunned free-speech advocates, and the reintroduction of the shield bill into Congress acted as an olive branch to media.

The climate continues to remain tense, however, in light of the continuing insistence from the Justice Department that Risen testify in the prosecution of Sterling. This continued targeting of journalists’ information only strengthens the conviction that a federal shield law is necessary now more than ever.