Fact sheet for Senate Shield Bill

WHAT: A federal shield law would provide important and balanced ground rules for when the confidential relationship between reporters and their sources can be protected. While 33 states and the District of Columbia have state shield laws in place and 16 other states have recognized a privilege through court decisions, no federal shield law exists to provide similar ground rules at the federal level for shielding or compelling a reporter's confidential source.
WHY: More than 40 reporters have been subpoenaed or questioned about their confidential sources, their notes, and their work product over the last few years in criminal and civil cases in federal court. The need for this legislation was underscored again when, on August 13, a federal judge ordered five more reporters from major news organizations to reveal their confidential sources in the privacy lawsuit filed by Dr. Steven Hatfill against the federal government. Dr. Hatfill is suing the government under the federal Privacy Act for being named a “person of interest” in the 2001 anthrax investigation.
THE HARM: Groundbreaking stories, such as conditions at Walter Reed Army Medical Center, the Abu Ghraib prison scandal and baseball steroid abuse, would not have been possible without confidential sources. Forcing reporters to disclose sources and other information obtained in confidence creates the appearance that journalists are – or can be – used as an investigative arm of the judicial system.

As Justice Potter Stewart wrote, “When neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished.”

The proliferation of subpoenas to journalists is having a chilling effect on the flow of information to the public.

STATUS: In early August, H.R. 2102, the “Free Flow of Information Act,” passed out of the House Judiciary Committee by voice vote without objection. On September 20th, the Senate Judiciary Committee is expected to mark-up S. 1267, a similar federal shield bill that has been introduced by long-time shield law advocates Sens. Richard Lugar and Christopher Dodd, D-Conn. (There is a chance mark-up could slip to September 27th.) During the committee consideration, Sens. Arlen Specter, R-Pa., and Charles Schumer, D-N.Y., will offer a compromise bill as an amendment. The Specter/Schumer compromise bill (S. 2035) makes reasonable revisions to S. 1267 to address national security and law enforcement concerns expressed by Judiciary Committee Members.
WHAT THE SPECTER / SCHUMER COMPROMISE AMENDMENT WOULD DO: S. 2035 will be offered as an amendment and is not an absolute privilege. A confidential source's identity can be compelled if disclosure is necessary to prevent “a specific case of terrorism against the United States or significant harm to national security that outweighs the public interest in newsgathering and maintaining a free flow of information to citizens.” There is only a qualified privilege for leaks of properly classified information. Journalists also have no privilege in situations where the journalist is an eyewitness to a crime and where someone's life or the prevention of bodily harm depends on the reporters' confidential source information. Moreover, the privilege only protects sources and information made under the promise or agreement of confidentiality by the journalist. That means the privilege does not apply to non-confidential information.
SUPPORTERS: A working alliance of more than 50 media companies, media organizations and journalist groups support the passage of S. 1267, the “Free Flow of Information Act of 2007” with the Specter/Schumer Amendment.

Thirty-four state attorneys generals have also pointed out to the Supreme Court that lack of a clear standard of federal protection undermines state law.

OPPONENTS: Some in the business community have expressed concerns that the legislation would lead to individuals releasing trade secret or personal medical/financial information. For years, state shield laws have coexisted with laws that protect trade secrets as well as personal financial and medical information.

The Department of Justice (DOJ) opposes the legislation, even though the bill tracks, in large part, the principles embodied in the DOJ's own guidelines for when the media can be subpoenaed for confidential source information. And, the bill goes above and beyond what is required by the DOJ guidelines by providing for compelled disclosure under certain circumstances, including threats to national security, bodily harm, and criminal or tortious conduct.

The DOJ has publicly testified that its guidelines have worked well. Media companies and organizations agree and call on Congress – in a sense – to codify the guidelines so that these important ground rules also apply to special prosecutors and civil litigants, which have been the principal source of media subpoenas in recent years.

CAN THIS WORK? Yes, it is already working in 33 states and the District of Columbia, which have “shield” laws in force in state courts. Sixteen other states recognize a privilege through court decisions. Passing a federal shield law would provide similar standards at the federal level for when testimony and information can be sought from reporters.