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

Federal reporter’s shield legislation has met with opposition in the Senate Judiciary Committee.  The committee addressed S. 448, the Free Flow of Information Act of 2009, in a hearing on September 17 but, ultimately, failed to report the bill out of committee and onto the Senate floor.   The inability to move the bill to the floor for a vote by the full Senate is a disappointment to the media and surely to Sen. Patrick Leahy (D-VT), the chairman of the committee and co-sponsor of the bill.

S. 448, as amended, generally protects journalists from having to disclose source information in a federal proceeding unless a federal court has determined that:

(1) the party seeking to compel disclosure has exhausted all reasonable alternative sources,

(2) (A) in a criminal investigation or prosecution, (i) there are reasonable grounds to believe a crime has occurred, (ii) the information sought is “essential” to the investigation, prosecution or defense, and (iii) in an investigation of disclosure of classified information, the disclosure has caused or will cause “significant and articulable harm” to national security, or

(2)(B) in matters other than criminal investigations or prosecutions, the information sought is “essential to the resolution of the matter,” and

(3) nondisclosure would be contrary to the public interest, considering both the public interest in compelling disclosure and maintaining the free flow of information.

Before last week’s hearing, an amendment was offered in an effort to strengthen national security protections, and much of Thursday's debate focused on the proposed national security carve-out.   The protections from nondisclosure described above would not apply to information that would “materially assist in preventing or mitigating, or identifying the perpetrator of (1) an act of terrorism or (2) other significant and articulable harm to national security that would outweigh the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.” In other words, the federal shield would not apply, and disclosure could be compelled, in such circumstances.

But, even with the added protections for national security, Sen. Diane Feinstein (D-CA) and others expressed reservations about how the bill would affect leaks of sensitive intelligence documents and other classified national security information. 

Rather than voting on the bill in committee, Sen. Jeff Sessions (R-AL), the ranking member, suggested “slowing down” and focusing on the “problems” with the bill.  Indeed, the hearing concluded without an up or down vote on the bill, which means that it remains in committee for now.

The federal shield legislation’s fate at this point is unclear.  But judging by the remarks of the Senate Judiciary Committee members, particularly Chairman Leahy and Sen. Charles Schumer (D-NY), the committee members will continue working to resolve their differences and working with the Justice Department to craft a compromise.  We’ll continue to update you on this important legislation.

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A Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early applications of the newly enacted Texas shield law. (We previously reported on the Texas shield law in civil and criminal proceedings.) At least in this case and one other reported on by the Reporter's Committee for Freedom of the Press, it appears that the Texas trial courts are ably applying the statutory privilege, which just took effect in May 2009.

According to the Reporter-News’s coverage, the defendant’s attorney argued that his client’s interest in a fair trial outweighed the newspaper’s interest in protecting the identities of the posters. However, in addition to arguing that the shield law protected the commenters’ identities from disclosure, the Reporter-News also argued that the defendant’s right to a fair trial could be adequately protected by questioning prospective jurors during jury selection. 

The Texas court joins a growing number of jurisdictions that have declined to require website publishers from disclosing the identities of anonymous posters. We have covered a number of those outcomes over the past several months, including cases from Maryland and Pennsylvania. 

Although the case law in favor of protecting anonymous posters' identities from disclosure is growing, the cases are not uniformly in that direction, as pbs.org's Mediashift has recently discussed.

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In a case we first reported on in December, a judge in Madison County, Illinois ordered The Alton Telegraph newspaper to reveal the identity of two people who commented anonymously on the newspaper's web site.

A state prosecutor in Madison County had issued a subpeona to the Telegraph in October seeking the names of five people who had posted comments on a news story concerning a man who had been indicted for the murder of a five-year-old boy.  The prosecutor claimed that the five people may have information relevant to the investigation.  The paper sought to quash the subpoena, claiming primarily that the paper was protected by the state's shield statute because the commenters were "sources" as defined in by the law.

The judge, Richard L. Tognarelli, largely rejected the newspaper's "source" argument.  While acknowledging that no Illinois appellate court had decided the issue, Judge Tognarelli said that in this case:

[I]t is clear that the "reporter" did not use any information from the bloggers in researching, investigating, or writing the article.  In fact, none of the comments were written until after the article was published.  Comments were then made between various bloggers, between themselves, without comment, input or discussion from the reporter.  It would not appear that the bloggers were "sources" for the Telegraph news article.

The judge emphasized that the shield law ought not apply "to those individuals who voluntarily post information in a forum designed to elicit citizen's opinions in response to a newspaper article." (emphasis in original).

Finally, Judge Tognarelli held that even if the shield law applied, the state had met its burden, at least as to two of the commenters, of showing that the sources sought were "relevant" and that the state had "exhausted 'all other available sources of information.'"  In particular, a detective who testified at the hearing on the motion to quash said that the state had interviewed more than 117 people and did not have the time or money to re-interview all of them to ascertain if they were one of the commenters.

Two of  the five commenters identified in the original subpoena were found to have information that might be relevant, based on what they had said online.  The remaining three did not appear to have relevant information, the judge said, and so the motion to quash was granted as to them.

While courts across the country have been increasingly willing to quash subpoenas seeking the identities of anonymous commenters in civil cases, there is far less case law concerning criminal matters.  In March, we reported on the decision by a third-party company hosting a newspaper's comments section to comply with a request from prosecutors for the identiy of anonymous commenters who might have information relevant to a criminal investigation.

No decision has been made by the newspaper on whether to appeal the judge's ruling.

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