Free Flow of Information Act -- Background

• By: ASNE staff
• On: 03/25/2009 15:45:00
• In: FOI

In February 2009, sponsors in both houses of Congress reintroduced the Free Flow of Information Act (S. 448/H.R. 985). The Act is a federal shield law that would protect the identities of reporters’ confidential sources and the public’s right to know.

The legislation responds to a disturbing trend. Since 2001, five journalists have been sentenced or jailed for refusing to reveal their confidential sources in federal court. Two reporters were sentenced to 18 months in prison and one reporter faced up to $5,000 a day in fines. A 2006 study estimated that in that year alone, 67 federal subpoenas sought confidential material from reporters, with 41 of those subpoenas seeking the name of a confidential source. It is not the American way to imprison or bankrupt journalists who protect the identities of their sources. Nor does such a practice help our government’s efforts to promote democracy and the freedom of the press around the world.

A shield law would not just protect reporters; it preserves the public’s right to know. If potential sources, including government and corporate whistleblowers, fear that reporters will be forced to reveal their identities, these sources will not come forward, and the public will lose the ability to hold the government and corporations accountable for wrongdoing. Be it the mistreatment of soldiers at Walter Reed Medical Center, safety problems at nuclear power plants or the massive fraud at Enron, groundbreaking stories would have remained unknown both to the public and to Congress without information from confidential sources.

Protection of the public’s right to know is not an issue exclusive to Republicans or Democrats. Prior versions of the Free Flow of Information Act enjoyed strong bipartisan support. In October 2007, the Senate Judiciary Committee passed a bill by a vote of 15-4. The legislation was co-sponsored by then-Senator President Obama. That same month, the House of Representatives passed a similar measure by a vote of 398 to 21.

The bill does not give a free pass to the press or sources. The bill establishes a privilege that would be qualified, not absolute.

• Both the House and Senate versions require reporters to provide information to prevent acts of terrorism or other significant harm to national security, to furnish eyewitness observations of a crime, and to provide information needed to prevent death, kidnapping, or substantial bodily harm.
• The legislation establishes reasonable and well-balanced ground rules for when a reporter can be compelled to testify about confidential sources and when a reporter can receive protection. Federal standards are desperately needed to provide uniformity and predictability in light of conflicting federal court opinions.

The legislation’s careful balancing of interests has drawn support from current and former federal and state law enforcement officials. In June 2008, the Attorneys General from 42 states urged the Senate to approve the Free Flow of Information Act, warning that the lack of federal standards is “producing inconsistency and uncertainty for reporters and the confidential sources” and undermining state shield laws. Former Solicitor General Theodore Olson wrote in October 2007 that the “legislation is well balanced and long overdue, and it should be enacted.”