ASNE protests Obama administration language that weakens shield law

After months of productive negotiations with members of the Senate Judiciary Committee and representatives of the more than 70 media entities supporting the shield law, the Obama administation has presented a series of proposed amendments that represent a significant step backward.

Dear ASNE member:

By now you are likely aware that the Senate Judiciary Committee, despite our hopes and the urging of media across the country, has not passed S 448 and moved the Free Flow of Information Act to the Senate floor. You also are likely aware this is because the Obama administration, which after months of productive negotiations with members of the committee and representatives of the more than 70 media entities supporting this legislation, has presented a series of proposed amendments that represent a significant step backward from earlier versions.

ASNE joins other major media organizations and companies in questioning the administration's stated commitment to passage of a first-ever federal shield law. Recent editorials from the Washington Post and New York Times are examples of the type of concern that our members can raise on their opinion pages.

S 448 has enjoyed bipartisan support throughout the legislative process, largely through recognition that the bill's provisions are consistent with the First Amendment's protection of newsgathering while respecting the interests of litigants in the trial process. Key changes proposed by the administration include:

  • Allowing a litigant to meet a key element of the qualified privilege by simply showing it has "reasonable grounds to believe" that the information sought is essential to an investigation or prosecution of, or defense in, a criminal case or the resolution of a civil case.
  • Effectively removing the "public interest balancing test" that provides a key protection for reporters with important protection in criminal cases by placing the burden on the person invoking the privilege to prove by clear and convincing evidence that "disclosure of the information would be contrary to the public interest."
  • The reporter's privilege is almost eviscerated in any situation where the government claims a significant and articulable harm to national security because the government now need only show that such harm is "reasonable" and a reviewing court is instructed to give "appropriate deference" to such a claim.

While this sudden reversal in what had previously been a harmonious and relatively productive legislative course is troubling, we find the contradiction of key administration officials' earlier positions to be even more disconcerting. During the Associated Press luncheon at our joint convention with the Newspaper Association of America in April 2008, President Obama endorsed a version of the shield law that was quite similar to what we had been working on prior to these changes. Later to become a co-sponsor of the Free Flow of Information Act during the 110th Congress, then-Senator Obama told convention attendees:

But what we have to make sure of is that there is somebody watching over the administration to make sure that it's not being abused. That simple principle that there's somebody watching the watcher, that there is not simply someone at the White House making unilateral decisions about how we strike a balance between our civil liberties and our safety.

These changes emanating from the highest levels of his administration remove the ability of the judicial branch to engage in exactly the type of oversight the president advocated. During confirmation hearings earlier this year, Attorney General Eric Holder indicated support for a "carefully crafted" shield law.

We believe the prior version of S 448, as amended on several occasions, but most recently on Sept. 24, is carefully crafted and properly balances the rights of reporters to use and protect confidential sources when appropriate and necessary while also ensuring that the courts have access to essential information from reporters when appropriate and necessary.

The administration has publicly said that these proposed changes are not set in stone. We hope they are true to their word and will continue to work with media companies and organizations to enact a version of S 448 that resembles that which the Senate Judiciary Committee appeared ready to pass, not the version the administration has sprung upon us without prior warning or request for input. Your voice can help return the administration to the discussion.

You can contact ASNE legal counsel Kevin M. Goldberg (ph: 703-812-0462) if you have any questions. As always, we're interested in seeing editorials that you write so we can share them with your fellow ASNE members and with key members of Congress.

Thank you,

Andy Alexander
Tim Franklin
ASNE Freedom of Information Committee Co-Chairs