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Federal Shield Law, the Senate version

February 28, 2009
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An update from Capitolbeat attorney Kevin Goldberg:

As we suspected, the Free Flow of Information Act has been introduced in the Senate.  S 448, introduced by Sens. Charles E. Schumer (D-NY), Richard Lugar (R-IN), and Lindsey Graham (R-SC), on February 13, is identical to the version of this legislation that passed the Senate Judiciary Committee in the 110th Congress.

The Senate bill is, however, slightly different from the version introduced in the House earlier last week. Both contain qualified privileges that protect reporters in certain instances from being forced to testify in federal court proceedings. Here’s what S 448 provides.  (The differences between this bill and HR 985 are noted in parenthesis):

  • The bill applies to any person engaged in the “regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”  (There is no financial component to this definition, but it does require that the person regularly be engaged in journalistic activities.)
  • The bill only applies when the reporter is protecting a confidential source.
  • The qualified privilege is overcome only when it is demonstrated by a preponderance of the evidence that:
  1. the information is essential (as opposed to “critical”) to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, and
  2. all other sources for the information have been exhausted, and
  3. nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.
  • The privilege does not apply at all if the information (these are similar to provisions in the House bill, but more limited in nature):
  1. was obtained through eyewitness observations of criminal or tortious conduct,
  2. is necessary to stop, prevent, or mitigate a specific case of death, kidnapping, or bodily harm; or
  3. would assist in preventing a specific act of terrorism or other significant and articulable harm to national security.
  • This bill also protects against the disclosure of telephone and E-mail records unless the reporter is given prior notice and an opportunity to be heard.

Capitolbeat has also endorsed S 448 and will work with Members of Congress and the significant number of media organizations that have committed to enact this legislation.

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