NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · May 2, 2007
Federal shield laws introduced in both houses
May 2, 2007 · A federal reporter’s shield law is not about protecting reporters, it is about it is about protecting the public’s right to know, Rep. Mike Pence (R-Ind.) said today during a press conference to announce the introduction of shield legislation in the House and Senate.
Pence and Rep. Rick Boucher (D-Va.) are co-sponsoring this year’s House bill, while Sens. Richard Lugar (R-Ind.) and Christopher Dodd (D-Ct.) introduced an identical bill this afternoon in the Senate.
Pence said such legislation was needed to “repair the tear in the First Amendment.”
“A free and independent press is the only agency in America that has complete freedom to hold government accountable,” Pence said.
Similar bills were pushed last year in both houses, but neither made it out of their respective judiciary committees.
Prospects have shot up significantly in the past year, however, Boucher said, because the bills are being introduced under Democratic leadership and there is a more unified journalistic community supporting the bills. And the public has had a “national awakening to this crisis,” said Pence.
“We enter dangerous territory for a democracy when journalists are hauled into court and threatened with imprisonment if they don’t divulge their sources,” Dodd said in a written statement.
The bills do not give reporters an unconditional privilege, but Boucher said the exceptions were “narrow” when it comes to protecting confidential sources.
The bills apply to both criminal and civil cases. They state that journalists are protected by a privilege to protect sources unless the information is needed to prevent imminent harm to the national security or imminent death or bodily harm, or to reveal the sources of leaks of trade secrets of significant value, identifiable health information or other personal financial information revealed in violation of existing federal laws. These exemptions, however, would face a judicial balancing test where a judge would account for “both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information” before finding the privilege had been overcome, Boucher said.
Journalists would also have a qualified privilege to protect newsgathering materials and information that does not implicate confidential sources. The privilege could be overcome if other sources of the information had been exhausted and the information was essential to a case.
The bill also defines journalism as “gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.” Boucher said that means bloggers would be covered, provided they are engaged in newsgathering.
More than 40 news and journalistic organizations have endorsed the current legislation.
At the news conference, Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, stressed that the media subpoena crisis has not ended. She cited subpoenas recently issued to at least eight news organizations in the ongoing case of a former Army scientist once named a “person of interest” in the 2001 anthrax attacks. The scientist, Steven Hatfill, has sued the federal government for leaking information about him to the press. Representatives from other media associations also spoke at the press conference, including the Newspaper Association of America, which has spearheaded the media effort to get a federal shield law.
Currently, 33 states and the District of Columbia have shield laws.