Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

After weeks of debate, the Senate Judiciary Committee today amended and passed the proposed federal shield law on to the full Senate for consideration.  Even with this important step, it is unclear when the full Senate will vote on the measure or how quickly the Senate version can be reconciled with the House version.

In an important victory for the media, the Senate Judiciary bill reportedly adopts a broad definition of "journalist" -- one that, at this stage, includes bloggers and other journalists with non-traditional media organizations.  This aspect of the bill was the focus of much debate, with politicians from all sides pushing for a narrower definition.  During the Committee's debate, one of the key opponents of the broader formulation was California Democrat Dianne Feinstein.  For a webcast of the Committee's markup session, click here.

The final text of the bill that passed is not yet available, but as we reported in November, it is expected that the bill will provide for different burdens of proof in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases.  The bill also reportedly retains a national security exception that would require disclosure if the sought-after information "would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security."

We will post full details of the actual Senate Judiciary bill once it becomes available.  In the meantime, the Media Law Resource Center has a good collection of the various bills.

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The Senate Judiciary Committee is slated this week to take up compromise language on the Free Flow of Information Act of 2009 (S. 448), endorsed by Attorney General Eric Holder, which may finally result in passage of a federal shield law.

As we previously reported, federal shield bills were again introduced in Congress this year, after many years of frustrating defeals. Although a shield bill passed in the House, the bill unexpectedly hit a snag in the Senate. To the surpise of many observers, the Obama administration objected to the bill on the grounds that it gave insufficient latitude to the executive branch to issue newsroom subpoenas seeking information relating to matters of national security.

The proposed shield bill languished during the summer and early fall, its fate uncertain. Two weeks ago, however, Senate sponsers Chuck Shumer and Arlen Specter announced that a deal had been struck with the Obama administration.  Last week, Attorney General Holder's office released a letter publicly supporting the revised language.  Significantly, this letter represented the first Presidential administration to publicly support a federal shield law.

The compromise departs from the bill as originally introduced in several ways.  First, the definition  of a covered "journalist" is broadened to include unpaid bloggers as well as paid employees of media organizations.  However, the bill expressly excepts from that definition anyone who is reasonably believed to be using the shield to protect an act of terrorism.  

The compromise also differentiates the burden of proof required in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases. 

The compromise language retains a national security exception, albeit narrower than the Obama administration had initially suggested.  The exception reflected in the compromise language would require disclosure if the sought-after information “would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security.”

Media outlets and journalist organizations are urging members of the Senate Judiciary C\ommittee to report the bill favorably as revised so the legislative process may proceed in the Senate.  We will continue to monitor the progress of the proposed federal shield law.

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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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