NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · May 18, 2006
Shield bill introduced in Senate
May 18, 2006 · A reporter’s shield bill introduced in the U.S. Senate today would create only a qualified privilege — one that can be overcome by the subpoenaing party — for confidential sources and information, which is probably the best result that journalists can expect from Congress, say media advocates who have been pushing the legislation.
“The Free Flow of Information Act of 2006” was introduced by Sen. Richard Lugar (R-Ind.), Chairman of the Senate Foreign Relations Committee, with Judiciary Committee Chairman Sen. Arlen Specter (R-Penn.), Sen. Christopher Dodd (D-Conn.), Sen. Lindsey Graham (R-S.C.) and Sen. Chuck Schumer (D-N.Y.). Earlier bills introduced in this congressional session by Lugar and Dodd would have provided an absolute privilege for confidential sources and were the subject of Judiciary Committee hearings last summer. But Specter made clear that he wanted changes before allowing a reporter’s privilege bill to be voted on by the Judiciary Committee.
The Lugar-Specter bill provides a qualified privilege for journalists to protect confidential sources and information in both civil and criminal cases. The bill’s qualified privilege generally requires requesters of confidential material to show that: they have exhausted all other alternate sources, they have reason to believe the information is relevant, the information is critical to the case, and the public interest in disclosing the confidential source outweighs the public interest in newsgathering and maintaining the free flow of information.
In providing only a qualified privilege, the bill is similar to most state shield laws. Of the 32 states (including Washington, D.C.) that now have them, only 12 provide an absolute privilege for confidential sources.
Paul Boyle, the Vice President of Governmental Affairs for the Newspaper Association of America — a driving force behind the shield bill — noted that the bill was not perfect.
“Our hope was to get a bill that provided absolute protection, but as we began this process we realized we were leaning more towards a qualified protection,” Boyle said. “This bill really establishes important ground rules for confidential sources and reporters going forward. It’s a very valuable piece of legislation, it’s a good bill, it gives us something that we don’t have today, which is protection in federal court.”
Patrick Butler, a vice president of the Washington Post Co. — another organization behind the effort — agreed.
“We’ve concluded this is the best bill we’re likely to get in the political environment in which we’re operating here,” Butler said. “We think this bill has some important new protections that just don’t exist right now and that’ll be very helpful even though the privilege is no longer absolute, as we had hoped for in the original Lugar-Dodd bill.”
Boyle and Butler noted that the nature of the privilege was modified to address concerns raised by other senators. The new version of the bill will hopefully “be able to garner wide, bi-partisan support,” according to Boyle.
The bill includes exceptions for journalists’ eyewitness observations of crimes, preventing death or substantial bodily injury, and national security interests.
The national security exception requires the government to show that disclosure is “necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security,” and that the value of disclosure outweighs the harm to the public interest by compelling disclosure. A second section of the exception applicable to leaks of classified information requires that the leak has “seriously damaged the national security,” that alternative sources have been exhausted, and that the harm caused by the disclosure outweighs the benefit of the information to the public.
The bill would not invalidate or overcome any of the protections provided by state shield laws and court decisions that have recognized a reporter’s privilege.
Backers hope that eliminating the controversy over a broad privilege means that Congress might enact a reporter’s privilege into law before it adjourns. “There’s a chance that we actually get this bill passed this year in both houses of Congress and signed by the president,” Butler said. “A lot of things have to happen in our favor for that to happen, but we’re hopeful.”
(The Free Flow of Information Act of 2006)