Two proposed bills would provide additional protection not only to reporters, but also to their sources. Any company spokesperson or defense lawyer who speaks to a reporter has a modest vested interest in the passage of the Free Flow of Information Act of 2013.
If you’ve picked up the paper recently or tuned into 24-hour cable, you’ve likely come across a story or two on President Obama’s push for the U.S. Congress to pass a federal press shield law. The news may seem like it only pertains to members of the Fourth Estate, but the proposed legislation might have a protective impact on any business person or lawyer who talks to a reporter or news organization—even on background.
Just two months ago, there appeared real momentum for the passage of a federal press shield law by Congress as a result of widespread bipartisan criticism of the U.S. Department of Justice (DOJ). In the wake of the disclosures that the DOJ legally obtained the e-mails of a Fox News reporter and used the DOJ’s subpoena power to obtain calling records of Associated Press reporters, the White House began pushing forward with its support of legislation that would provide greater protections to reporters in keeping their sources and communications confidential. At the public urging of President Obama, Senator Charles Schumer reintroduced a version of a bill that he had pushed in 2009 called the Free Flow of Information Act. Hours later, Representative John Conyers of Michigan, the top Democrat on the House Judiciary Committee, said he would reintroduce his version of the bill too, noting that the legislation passed the House twice when it was under Democratic control. Two separate versions of the bill—Senate Bill 987 and House Resolution 1962—are now working their way through the House of Representatives and the Senate.
But quicker than you can say “Edward Snowden,” the momentum for both bills appears to have stalled. In the same way that the WikiLeaks disclosures derailed the shield law bill’s likely passage in the Senate in 2010, a furor has developed in Congress over the Snowden revelations. In addition, at least one important member of the House, former Homeland Security Committee Chairman Peter King, has even suggested that the reporter who broke the Snowden story ought to be prosecuted for publishing the leaks.
While the 2009 iteration of the federal shield law bill would give reporters greater protection from having to reveal their sources and would keep their communications confidential in federal law enforcement proceedings, reporters would not have blanket immunity. Under both the 2009 bill and the 2013 version, the scope of protection for reporters would vary according to whether it was a civil case, an ordinary criminal case or a national security case.
Civil cases would receive the greatest protection. Here, litigants seeking to force reporters to testify or trying to obtain their calling information would be required to show why their need for the information outweighs the public’s interest in unfettered news gathering.
Ordinary criminal cases would work in a similar fashion, except the burden would be on the reporter seeking to quash the subpoena. Under this type of case, a reporter would have to show by a “clear and convincing” standard that the public interest in the free flow of information should prevail over the needs of law enforcement.
Finally, cases involving the disclosure of classified information would be more heavily tilted toward the government. Under the Schumer bill, judges could not quash a subpoena through a balancing test if prosecutors presented facts showing that the information sought might help prevent a terrorist attack or other acts likely to harm national security.
All of this means that the legislation would provide additional protection not only to reporters, but also to their sources, who are the lifeblood of any good reporter. Any company spokesperson or defense lawyer who speaks to a reporter has a modest vested interest in the passage of the Free Flow of Information Act of 2013. But the legislation would not likely extend to websites, ISPs and phone companies. The same criticism leveled by some in Congress in 2009 remains valid for the 2013 legislation—some members of Congress don’t want the shield law used to protect websites that served as digital dumping grounds for secret government documents. In the meantime, while S.987 and H.R.1962 work their way through Congress, journalists, their sources and their news outlets lack the type of protections that exist in 49 states and the District of Columbia.© 2013 McDermott Will & Emery