Posted on February 18, 2009 by Charles Coble

Federal Shield Bill Introduced Again in Congress

After a number of years in which proposed federal shield statutes have stalled in Congress, news media interests are optimistic that this time will be the charm.  Last week bills were introduced in both the House of Representatives and the Senate that would create a qualified privilege for journalists subject to federal subpoenas akin to the protections journalists currently have under many state shield statutes.

Dubbed the "Free Flow of Information Act of 2009," Senators Specter, Shumer, Lugar, and Graham introduced S. 448 last Friday.  The bill mirrors H.R. 985, which was also introduced in the House last week.  The House bill provides that:

In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person [that certain enumerated provisions have been met].

The House bill provides that the party seeking material from a journalist may overcome the privilege by demonstrating that: (1) alternative avenues to obtain the information have been exhausted; (2) the information sought is critical to the investigation or proceeding; (3) the public interest favors disclosure of the information; and (4) if the information would reveal the identity of a source of information, disclosure is necessary to prevent an act of terrorism, to prevent imminent bodily harm, to identify a person who has disclosed a trade secret or other confidential information, or to identify a person who has disclosed classified information that may harm national security.  The House bill also contains exceptions for journalists who are eyewitnesses to or who commit a crime.

The Senate bill is comparable, as were the bills introduced in the last session of Congress.  In connection with introducing S. 448, Senator Shumer issued the following statement: 

A truly free press is the lifeblood of our democracy.  This compromise bill takes a reasonable and balanced approach to keeping us free and safe.  We have worked closely together to craft a careful bill that protects both the freedom of the press and the safety of our citizens.  In a free and democratic country, we should be able to do both – and this bill does.

The change in Presidential administrations has given The Reporters Committee for the Freedom of the Press and other organizations that have advocated for a federal shield law cause for optimism.  President Bush and his Justice Department opposed prior federal shield bills, and President Bush threatened to veto such a bill if it passed Congress.  In contrast, both President Obama and Attorney General Holder have voiced their support for a federal shield law.  We will follow closely the progress of the Free Flow of Information Act of 2009 as it wends its way through Congress.

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Posted on December 17, 2008 by Charles Coble

Reporter Invokes Fifth Amendment Privilege to Protect Confidential Source

A reporter for the Detroit Free Press took an unusual approach last week in an effort to protect the identity of a confidential source -- he invoked the Fifth Amendment privilege against self-incrimination.

This dispute arose in the context of a civil lawsuit brought by former federal prosecutor Richard Convertino in federal court in the District of Columbia.  Convertino led the prosecution of the so-called "Detroit Sleeper Cell" defendants shortly after September 11, 2001; however, the Justice Department subsequently removed Convertino from his post and asked that the convictions he obtained in that matter be dismissed.  In the complaint he filed in the pending civil action, Convertino -- who was himself acquitted of charges that he conspired to conceal exculpatory evidence and lied to a federal judge in connection with the prosecution -- contends that the Department of Justice disclosed information about him to the news media in violation of the federal Privacy Act.

In connection with the civil lawsuit, Convertino sought to depose Detroit Free Press reporter David Ashenfelter.  In particular, he sought from Ashenfelter the identity of a confidential source who told the newspaper that Convertino was being investigated for misconduct in connection with a terrorism prosecution.  Information from that source appeared in a January 2004 article that Ashenfelter authored.  Ashenfelter and the Detroit Free Press fought the subpoena in federal court in Michigan, moving to quash the subpoena and opposing Convertino's motion to compel Ashenfelter to comply with the subpoena.  In these papers Ashenfelter relied on traditional First Amendment arguments, which we have discussed in a prior post.  The district court rejected these arguments, and ordered the deposition to move forward in this written decision, which was subsequently reaffirmed on the newspaper's request for reconsideration.

Having lost on his First Amendment arguments, Ashenfelter appeared for his deposition last week.  However, during the deposition he still refused to answer questions concerning his confidential source, invoking the Fifth Amendment's privilege against self-incrimination.  The basis of his invocation of the privilege was Convertino's allegation that Ashenfelter, in refusing to reveal his source, was aiding the crime Convertino contends the source committed when the original leak occurred in 2004.  The Detroit Free Press issued a statement after the deposition adjourned, stating that "the First Amendment ought to be enough to protect journalists" and citing the matter as an example of why Congress should enact a federal shield law to protect reporters from being compelled to identify their sources in federal proceedings.  Convertino's attorney stated that he may ask the court to hold Ashenfelter in contempt for refusing to answer questions about his source.

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Posted on October 10, 2008 by Eric David

Proposed Federal Shield Law Remains Stalled in Congress

The U.S. Supreme Court case of Branzburg v. Hayes offers reporters limited constitutional protection from subpoenas compelling the disclosure of confidential sources or other source material.  The limitations of Branzburg and the lack of a federal shield law to complement state statutes first came into public consciousness in 2004 with the well-publicized Valerie Plame case. The effort to compel testimony from various Washington reporters about their contacts with White House officials was just one in what some perceived as a marked increase in the number of subpoenas served on journalists.

In response, a federal shield law—called the Free Flow of Information Act— was introduced in Congress in 2005. That act, like many state shield statutes, provides a qualified privilege for reporters that can only be overcome if the federal entity seeking disclosure can show that (1) there is no other reasonable way to get the sought-after information; (2) the information is “essential” to the case; (3) that 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; and (4) that:

(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively; or
(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed:
(i) a trade secret of significant value in violation of a State or Federal law;
(ii) individually identifiable health information . . . in violation of Federal law; or
(iii) nonpublic personal information . . . of any consumer in violation of Federal law.

The act also requires that the compelled disclosure be narrowly tailored and as limited as possible.

The Free Flow of Information Act passed the House in October 2007 but a slightly different version of has been stalled in the Senate ever since. Despite overwhelming support in the House and the Senate Judiciary Committee, it is unclear when, if ever, the Senate will move forward on the bill. It should also be noted that since the increase in federal subpoenas in 2003 and 2004, the number issued in 2005 and 2006 has decreased significantly. In 2006, for example, only three federal subpoenas were issued to reporters, as compared to nineteen in 2004.
 

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