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Shield bill introduced in Senate

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  1. Protecting Sources and Materials

    News Media Update         WASHINGTON, D.C.         Confidentiality/Privilege         Feb. 10, 2005    

Shield bill introduced in Senate

  • The “Free Flow of Information Act” would provide an absolute privilege regarding confidential sources, and a qualified privilege covering other material and testimony.

Feb. 10, 2005 — Sen. Richard Lugar (R-Ind.) introduced the “Free Flow of Information Act” yesterday, a bill that would create a reporter’s privilege regarding compelled disclosure of sources and other newsgathering information.

The bill is identical to a House bill introduced last week by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.).

“It is important that we ensure reporters certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment,” Lugar said in a prepared statement. “Without such protection, many whistleblowers will refuse to step forward and reporters will be disinclined to provide our constituents with the information that they have a right to know.”

The bill provides an absolute privilege for protecting the identities of confidential sources, meaning the right cannot be overcome by demonstrating competing interests.

A qualified privilege covers other materials. Subpoenaing parties can demand information from reporters if they show that they have unsuccessfully attempted to obtain the information “from all persons from which such testimony or document could reasonably be obtained.” In addition, in criminal cases the information must be “essential to the investigation, prosecution, or defense,” while in other cases, the information must be “essential to a dispositive issue of substantial importance” to the case.

The bill also protects journalists’ third-party records, such as telephone records and e-mail, to the same extent as material held by journalists, and further requires that journalists be notified before such subpoenas are issued and be given an opportunity to contest them before the time the records must be turned over.

The shield provision would cover publishers, broadcasters and wire services and those who work for them. The definition would include freelance journalists who are working for a publisher or broadcaster, but not those without contracts or those who publish solely on the Web.

(S. 340)GL

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