Stars seem to align for federal shield law

From the Spring 2009 issue of The News Media & The Law, page 25.

As two versions of a federal shield law wend their way through the legislative process, the possibility that journalists could soon have a uniform reporter’s privilege in federal courts is moving closer to reality.

The House of Representatives approved its version of the Free Flow of Information Act, H.R. 985, by a unanimous voice vote in late March. The Senate has not yet voted on its bill, S. 448, but is expected to discuss both bills at a Senate Judiciary Committee meeting.

Although there are some differences in the two bills that need to be reconciled, proponents of a federal shield law are hopeful that the legislative and executive branches will come to an agreement and a law will finally be enacted.

“We are more optimistic this time,” said Sophia Cope, legislative counsel with the Newspaper Association of America, which has lobbied heavily in favor of a federal shield law. “A lot of pushback last time was because the Bush administration was not in favor of this at all. They couldn’t come up with any language they could agree with.”

The two bills on the table now are similar to the ones that were introduced in 2007. This time around though, Cope said, they’ve been introduced into a friendlier environment. While the Bush administration had threatened to veto any shield law, the Obama administration has so far been supportive of a reporter’s privilege.

In the details

Both bills would protect reporters from subpoenas seeking their testimony or work product in federal courts. Every state but Wyoming has some sort of protection, either through statute or common law, for reporters who get subpoenaed in state court. And while some federal courts apply a First Amendment-based reporter’s privilege, the extent of protection varies markedly around the country.

Though the bills have the same aims, they vary slightly in just who and what they will protect.

The House bill, for example, covers only someone who reports and writes for a “substantial portion of the person’s livelihood or for substantial financial gain,” eliminating many bloggers and freelancers.

By contrast, the Senate bill extends the protection to anyone who is “engaged in journalism,” a definition that would likely encompass non-traditional journalists.

However, while the Senate bill would cover a broader pool of people, Cope said, the House proposes to provide stronger protection, in covering not just confidential information but the entire contents of a reporter’s notebook. The House bill would cover every subpoena issued in federal court, both confidential and non confidential. By contrast, the Senate bill, which only covers confidential sources, would apply to only a small portion of the subpoenas actually issued to reporters.

Cope said the NAA and other groups lobbying for passage of a shield law hope any final bill will hew toward the House version, covering the gamut of a reporter’s sources and work product, regardless of whether the reporter promised to keep it secret.

“The job of journalists is to collect as much information as they can, and pull it together into a digestible form for the public,” Cope said. “If all that work product gathered — notes, drafts, outtakes — is subject to a subpoena without any kind of limitation there really could be a chilling effect on how thorough a reporter does his or her job.”

The House bill is stronger in another aspect as well. When it comes to confidential sources, the House version provides near absolute protection, with exceptions only for breeches of national security, potential imminent death or significant bodily harm, and release of trade secrets. The protection for all work-product, both confidential and non-confidential, is subject to a qualified balancing test. A court can compel the production of the material if it’s found to be critical to a criminal investigation or successful to the completion of a civil case.

By contrast, the Senate bill specifically states that non-confidential work product is not protected. And in regards to confidential sources, the protection is qualified, with exceptions for criminal or tortuous conduct, the prevention of death, kidnapping or substantial bodily injury, and national security.

Both bills have so far received bi-partisan support in Congress, which gives Cope even more optimism that some sort of protection will get signed into law soon.

The Senate bill was introduced by Sen. Arlen Specter (D-Pa.), who recently switched his affiliation from the Republican party and joined the Democrats. Cope said she doesn’t believe that his party switch will have any effect on the bill’s passage. Sens. Charles Schumer (D-NY), Richard Lugar (R-Ind) and Lindsay Graham (R-S.C.) co-sponsored the bill.