Shield Law vote likely, Thursday, Nov. 5
We are happy to announce that the movement toward a strong federal shield law appears to be back on the right path. Weeks after the White House produced language that threatened the viability of S 448, the Free Flow of Information Act, as that legislation was to be considered by the Senate Judiciary Committee, and due in no small part to the efforts of ASNE members ..
Dear ASNE member:
We are happy to announce that the movement toward a strong federal shield law appears to be back on the right path. Weeks after the White House produced language that threatened the viability of S 448, the Free Flow of Information Act, as that legislation was to be considered by the Senate Judiciary Committee, and due in no small part to the efforts of ASNE members, the administration and key supporters of S. 448 have reached an agreement on language that restores many of the protections we feared would be lost if the White House's earlier language moved forward. ASNE and the more than 70 other media organizations and companies seeking a federal shield law support this new language. We hope that ASNE members will urge the Senate Judiciary Committee — and the rest of the Senate — to approve S. 448 in its current form and send it to the House of Representatives for affirmation by that body as well, thus enabling it for presidential signature.
A copy of the revised legislationcan be found here. It still provides for a qualified privilege applicable only where confidential information or sources are involved, so a reporter must already testify as to nonconfidential sources or information, which are the subject of a large portion the subpoenas that are issued annually. Here is a summary of the high points, with reference to how this version differs from the White House-suggested version where applicable:
- Criminal Proceedings: The White House had suggested different standards for breaking the qualified privilege based on whether the government or the defendant is seeking the reporter's testimony and/or information. Under that version, the government would have more power to require a reporter to testify or produce documents. Those differences have been eliminated.
S 448, in its current form, requires exhaust all other sources for the information sought. It also requires that the person seeking the information demonstrate that there are reasonable grounds to believe a crime has occurred and that there are reasonable grounds to believe that the information sought is essential to the investigation or prosecution or to the defense's case.
Added for the first time is a requirement that the attorney general certify that it has followed the Department of Justice's own guidelines for seeking information from the media, binding these previously voluntary guidelines against the government.
The public interest balancing test is reaffirmed. It still favors the government in criminal cases by forcing the reporter to demonstrate, by clear and convincing evidence, that disclosure of the information is contrary to the public interest. While we are not happy that this test remains weak in the criminal context, we note that truly damaging changes to the public interest balancing test as applied in national security cases have been removed (more on that below) and that this test still provides a final backstop against compelled testimony where it is clearly against the public interest.
- Civil Proceedings: This new version provides more protection in the civil context, including those cases involving government violations of the Privacy Act that have led to several high profile subpoenas issued to journalists in recent years. In addition to exhausting all other sources, the information must be "essential to the resolution of the matter". The party seeking that information now bears the burden where the public interest balancing test is concerned.
- Leaks Threatening National Security: As with earlier versions of the bill (the White House suggested version and earlier versions we have endorsed), the privilege does not exist at all where the information is needed to stop, prevent, or mitigate death, kidnapping or substantial bodily harm. There are also separate standards for breaking the privilege where the information is needed to protect national security or prevent terrorist activity. We are happy to report that "national security " largely is defined prospectively in the new S 448. Prior versions had allowed a litigant to obtain information when necessary to identify the perpetrator of prior terrorist acts or threats to national security, opening the door to fishing investigations of all types under the guise of national security.
Under this version of S 448, the government must show by a preponderance of the evidence that the information would materially assist the government in preventing or mitigating — or identifying the perpetrator of — an act of terrorism or other acts that are reasonably likely to cause significant and articulable harm to national security. However, the balance has been restored slightly where the threat is simply due to the leak of classified information. In this instance, the government can only obtain the information when necessary to prevent or mitigate an act of terrorism or a significant and articulable harm to national security. So, in most instances involving past threats to national security, the regular criminal proceedings test described above will apply.
- Definition of "Covered Person": The definition of a "covered person" or journalist has been strengthened by the excision of the "status" portion of the test which required that the journalist invoking the privilege demonstrate that he or she derive a substantial financial gain from his or her journalistic activities (though the House version, HR 985, retains this financial component). It is now purely a function-based test that basically focuses on whether the person is regularly gathering information for public dissemination.
Our views of this new compromise language are best summarized by ASNE President Marty Kaiser, who stated "We are pleased that the White House listened to our concerns and those of Senate Judiciary Committee members who have worked on this legislation for several years. While not perfect, this is a huge stride forward from the Administration's prior position and provides statutory protection that far exceeds that which is currently available to a reporter who is served with a subpoena in a federal proceeding. We are especially glad that S. 448 no longer defines a journalist by his or her activities rather than his financial compensation. This ensures that the valuable work done by student journalists, freelance book authors and qualifying bloggers will be protected. ASNE hopes that S. 448 quickly moves to the Senate floor and then toward presidential signature before any more journalists must choose between breaking a promise or going to jail."
It is highly likely that the Senate Judiciary Committee will vote on S 448 this coming Thursday, Nov. 5. Please join Marty and ASNE in urging swift passage of S 448. You can obtain more information about this version of the bill or the shield law effort by contacting ASNE Legal Counsel Kevin M. Goldberg at email@example.com.
ASNE Freedom of Information Committee Co-Chairs
October 29 version of S 448