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Capitolbeat endorses Federal Shield Law

February 11, 2009

From Capitolbeat attorney Kevin Goldberg:

Capitolbeat is proud to say that we are once again endorsing a legislative proposal to create a federal reporter’s shield law.  The Free Flow of Information Act (HR 985) was introduced on February 11 by 39 Members of the United States House of Representatives, including Reps. Rick Boucher (D-VA) and Mike Pence (R-IN), the primary points of contact.  Their press release announcing introduction of this bill is available here.

A press release from the 71 media organizations and companies endorsing the Free Flow of Information Act can be found here.   Capitolbeat President Laura Leslie is quoted in support of the legislation:

“No reporter or editor should ever have to face a court battle in pursuit of investigative journalism. But even in states with shield laws, the lack of a federal standard has left statehouse reporters and their confidential sources at risk. We applaud the sponsors of the Free Flow of Information Act for creating a fair federal standard to protect journalists as they work to protect the public.”

These words are acutely relevant as David Ashenfelter, a reporter for the Detroit Free Press, is fighting contempt charges for refusing to reveal the identity of a confidential source in a series of stories on the Justice Department’s investigation of an Assistant US Attorney in Michigan.  Statehouse reporters may not be fully aware that they, too, could find themselves in a similar predicament, as state shield laws or judicially-based reporters’ privileges only protect a reporter in state court. A reporter covering the statehouse could find himself or herself forced to choose between protecting the identity of a source or going to jail, simply because the case in which he or she has been called to testify was brought in federal court rather than state court.

The current iteration of the Free Flow of Information Act (full text here) is identical to last year’s version, HR 2102, which passed the House of Representatives by a vote of 398-21. While the Senate Judiciary Committee passed its version of the bill, S 2305, but the 110th Congress ended before differences could be resolved between the two versions.

The Free Flow of Information Act would create a “qualified privilege” available in all federal judicial, legislative and administrative proceedings to anyone “who regularly gathers prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain.”  A person fitting this definition would only have to testify in such proceedings if it can be shown by a preponderance of the evidence that the information is critical to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, and if all other sources for the information have been exhausted.

Even in cases that meet both of those criteria, the reporter can only be asked to testify about the identity of a confidential source or information that could lead to the revelation of the identity of a confidential source if the testimony is necessary to:

  • Prevent or identify any perpetrator of an act of terrorism against the United States or its allies or other significant and specified harm to national security.
  • Prevent imminent death or significant bodily harm;
  • Identify a person who has disclosed
    — A trade secret of significant value in violation of State or Federal law,
    — Personal health information in violation of Federal law, or
    — Personal financial information in violation of Federal law,
  • Identify the source of a leak of classified information, where the leak has caused or will cause significant or articulable harm to the national security.

In all instances, the court reviewing the privilege claim must also determine that the public interest in compelling the reporter’s testimony outweighs the public’s interest in gathering and disseminating news.

The bill also protects journalists against the unwilling disclosure of their information from third parties, such as telephone or E-mail providers who have been subpoenaed to provide the reporter’s call logs or E-mail records without his or her permission.

We are proud to be a part of this effort, and will continue to fight for a free press on this and all other issues.

— Capitolbeat attorney Kevin Goldberg

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