Congress closes in on a shield law

The House and Senate take significant steps toward passing legislation.

From the Fall 2007 issue of The News Media & The Law, page 11.

By Matthew Pollack

Last month, the U.S. House of Representatives and the U.S. Senate took major steps toward passing a federal shield law that would, for the first time, protect journalists from federal subpoenas.

The Free Flow of Information Act of 2007 received broad bipartisan support in both the House and the Senate Judiciary Committees in October. The full House overwhelmingly passed the measure (H.R. 2102) by a 398 to 21 vote Oct. 16 and the Senate Judiciary Committee agreed to send the bill (S. 2035) to the Senate floor by a 15 to 2 vote Oct. 4.

Congressional sponsors and proponents of the measure hailed the recent advances as a significant step toward preserving the relationship between the press and the sources on which they rely. 

“Protections provided by the Free Flow of Information Act are necessary so that members of the media can bring forward information to the public without fear of retribution or prosecution, and more importantly, so that sources will continue to come forward,” said Rep. Mike Pence (R-Ind.), co-author of the House bill, in a prepared statement. “Without the free flow of information from sources to reporters, the public will be ill-prepared to make informed choices.”

More than 50 news organizations and 70 co-sponsors joined Pence and fellow co-author Rep. Rich Boucher (D-Va.) in supporting the House measure. 

Supporters of the bill, including Kevin Goldberg, an attorney representing the American Society of Newspaper Editors, said they were surprised at the overwhelming majority who voted for its passage.

“This was a huge surprise, but a pleasant one,” Goldberg said.

He said the recent rash of adverse decisions in federal court may have pushed House lawmakers to realize that the bill was necessary. 

“The media got behind it in a very cohesive way and the sponsors were willing to amend the bill in ways to gain consensus.”

The success of both bills comes during the 35th anniversary of the 1972 Supreme Court decision in Branzburg v. Hayes, which held that journalists do not have First Amendment protection against grand jury subpoenas. 

Since that decision, media organizations have helped launch more than 100 attempts at passing a shield law. 

Prior to the current measures, none had even reached the floor of either chamber of Congress.

In floor debates, opponents of the bill maintained skepticism about the necessity of federal protection.

“For 200 years in this nation the press has flourished,” Rep. Lamar Smith (R-Texas) said. “Information has flowed freely. That is why I believe this bill is simply a solution in search of a real problem.”

The Bush administration’s attorney general nominee, Michael Mukasey, echoed those sentiments during his confirmation hearing before the Senate Judiciary Committee on Oct. 17.

“The system worked passably well up until now,” Mukasey told senators, noting that it would be much easier to fix internal Justice Department practices if need be.

But supporters of the bills draw attention to several high-profile news stories, including the mistreatment of veterans at Walter Reed Army Medical Center, the Abu Ghraib prison scandal and baseball steroid abuse, which may never have reached the public if not for information provided by confidential sources. 

“We simply have no idea how many newsworthy stories have gone unwritten and unreported out of fear that a reporter would be forced to reveal a source, or face jail time,” said Sen. Patrick Leahy (D-Vt.), who presided over the Judiciary Committee’s markup session.

And the Newspaper Association of America points to the more than 40 reporters who have been subpoenaed or questioned about their confidential sources and their work product over the last few years in federal court as evidence that such legislation is needed now more than ever.

Distinguishing between the House and Senate versions

While the recent legislative action has pushed the shield law further than any previous attempts, much work remains to be done and the bills will face a continued uphill struggle before becoming a law. 

The exact text in several sections of the Senate version remains unsettled as co-sponsor Sen. Charles Schumer (D-N.Y.) pledged to work with Sen. Jon Kyl (R-Ariz.) to resolve some of the Arizona senator’s concerns.

Even if the full Senate votes to accept the bill, a conference committee will likely have to work to resolve several key differences in the House and Senate versions of the measure.

Notably, the two versions differ as to exactly who and what would be covered under the law.

The Senate bill takes a broad stance in defining who would fall under the protected class.

The measure covers any journalist who engages in “the regular 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.” 

The definition of the protected class is among the details that Schumer and Kyl agreed to discuss before Senate Majority Leader Harry Reid (D-Nev.) submits the bill to the full Senate for consideration.

Meanwhile, the House bill takes a more restrictive approach. 

Under its version, journalists can only claim protection from federal subpoenas if their work is done “for a substantial portion of the person’s livelihood or for substantial financial gain.”  

However, the House bill does specifically include supervisors, employers, parents, subsidiaries and affiliates of anyone who qualifies for protection.

The two bills also differ with regard to exactly what materials would be protected. 

The Senate version of the bill protects only the identity of confidential sources and records, communications data, documents or information obtained upon a promise of confidentiality. 

The House bill creates a much more expansive scheme, extending protection not only to confidential sources and information, but to any documents or information obtained during the newsgathering process.

Going forward

Even if Congress decides on a final bill, the law will likely meet staunch resistance from the White House. 

On the eve of the House vote on the bill, the Bush administration released a statement threatening to veto it, painting the measure as a “dramatic shift in the law” and saying the bill’s protections “could severely frustrate — and in some cases completely eviscerate — the federal government’s ability to investigate acts of terrorism and other threats to national security.”

Rep. Pence countered the criticism, noting that 33 states and the District of Columbia already have similar legislative shield laws and that an additional 16 states have judicially crafted protections for journalists.

“The Free Flow of Information Act would set national standards similar to those that are in effect in those states,” Pence said.

But opponents of the bill continue to raise national security concerns.

“On a practical level, the bill would cause delays — measured in years — in national security investigations because prosecutors would be litigating (and appealing) instead of investigating serious crimes,” U.S. attorney Patrick Fitzgerald wrote in a column published in the Washington Post.

Lucy Dalglish, executive director for The Reporters Committee for Freedom of the Press, said that determining whether the subpoenaed information deals with national security is a threshold consideration in applying the bill.

But, she noted, the government has a relatively low bar to clear to establish national security concerns.

“Preponderance of the evidence is a really weak standard that doesn’t take much to overcome,” Dalglish said. “I foresee lots of tussles where the media is going to have to show that the information sought does not have to do with national security.”

Despite the administration’s objections, Congress continues to push the bill forward. 

The overwhelming support for the measure could indicate that the House is prepared to override a potential presidential veto, which would require a two-thirds majority vote in favor. u