Denver Post — Newspaper execs speak out

• By: ASNE staff
• On: 10/16/2007 12:42:22
• In: Shield law editorials

The Denver Post
Oct. 11, 2007

Read the proposed federal shield law as reported by the U.S. House of Representatives' judiciary committee. Amendments are ongoing. A full House vote is expected Oct. 16.

This is what the Newspaper Association of America, a nonprofit organization that lobbies on behalf of the $55 billion newspaper industry, has to say about the need for a federal shield law:

Congress Should Pass H.R. 2102, The Free Flow of Information Act

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 49 states and the District of Columbia have recognized a privilege through laws or 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.

STRONG BI-PARTISAN SUPPORT: U.S. Representatives Rick Boucher (D-VA), John Conyers (D-MI) (Chairman of House Judiciary Committee), Mike Pence (R-IN), Howard Coble (R-NC), Greg Walden (R-OR) and John Yarmuth (D-KY). The bill is currently co-sponsored by 45 Democrats and 26 Republicans.

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. Reporters are now becoming the first stop, rather than the last resort, for civil litigants and prosecutors attempting to obtain the identity of confidential sources.

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.

DOES H.R. 2102 PROVIDE AN ABSOLUTE PRIVILEGE? No, a confidential source's identity can be compelled if disclosure is necessary to prevent "an act of terrorism against the United States and its allies or other significant specified harm" to national security, to prevent imminent death or significant bodily harm, or to identify a person who has disclosed trade secrets or certain financial or medical information in violation of current federal law. The compelling party must also satisfy a public interest balancing test. Under this test, a court must find "that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information." The bill's sponsors have recently made changes - incorporating language used in the Senate bill that recently passed out of the Senate Judiciary Committee by a 15 to 4 vote. This "Manager's Amendment" will address Representatives' concerns about national security, unauthorized disclosures of properly classified information, and the scope of the definition of a journalist.

SUPPORTERS: A working alliance of more than 50 media companies, media organizations and journalist groups support the passage of H.R. 2102, the "Free Flow of Information Act of 2007." 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: 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, leaks of properly classified information and certain disclosures of trade secret, medical and financial information. 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 for all parties before a federal court, so that these important ground rules also apply to special prosecutors and civil litigants. The 35-year old DOJ guidelines do not 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 49 states and the District of Columbia. Passing a federal shield law would provide a similar standard at the federal level to govern when testimony can be sought from reporters.