Shield law gains momentum

• By: ASNE staff
• On: 02/27/2009 00:00:00
• In: Shield law alerts

The Free Flow of Information Act has now been re-introduced in both the House and the Senate, with ASNE and more than 70 other media organizations and companies ramping up our efforts to make a federal shield law a reality.

The new versions of each bill differ from each other, but each identical to the version which progressed through its respective chamber in the 110th Congress. HR 985, introduced on February 11, has 38 co-sponsors, including key support from the Chairman and Ranking Member of the House Judiciary Committee, Rep. John Conyers, D-MI. and Robert Goodlatte, R-Va., as well as previous leaders on this issue, Rick Boucher, D-Va., and Mike Pence, R-Ind.

This legislation passed the House of Representatives in the 110th Congress by a vote of 398-21 as HR 2102 but received no Senate action, largely because the Senate was busy with S 2035, which passed the Senate Judiciary Committee.

It was reintroduced as S 448 on February 13 and also has strong support from Senate Judiciary Committee Ranking Member Arlen Specter, R-Va., as well as Lindsay Graham, R-S.C., Richard Lugar, D-Ind., and Charles Schumer, D-N.Y.

Both bills would create a qualified privilege that applies in all federal proceedings. Here is a quick rundown of the key aspects of each bill, highlighting the differences between each:

• Each bill defines a journalist in a "functional" manner as a person who is engaged 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 public dissemination. However, the House bill also requires that the person be engaged in these activities for a substantial portion his or her livelihood or for substantial financial gain.
• The House version applies when the reporter is asked to testify regarding confidential or non-confidential information.
• A reporter will not have to testify as to non-confidential under the House version unless it is shown, by a preponderance of the evidence that the information is critical to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, all other sources for the information have been exhausted, and non disclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.
• If the reporter is asked to testify about information received from a confidential source, it must also be shown that the information is necessary to prevent or identify any perpetrator of an act of terrorism against the United States or its allies or other significant and specified harm to national security, prevent imminent death or significant bodily harm, identify a person who has disclosed (i) a trade secret of significant value in violation of State or Federal law, (ii) personal health information in violation of Federal law, or (iii) personal financial information in violation of Federal law, identify the source of a leak of classified information, where the leak has caused or will cause significant or articulable harm to the national security.
• Under the Senate version, the reporter can never decline to testify if the information request is non-confidential; if the information is confidential, the reporter will have to testify if it can be shown by a preponderance of the evidence that the information is critical to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, all other sources for the information have been exhausted, and nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.
• Each bill also prevents the disclosure of a reporter's e-mail or telephone records unless there is prior notice to the reporter and opportunity to be heard.

For questions, please contact Kevin Goldberg, Goldberg@fhhlaw.com.