A federal shield law, known as the Free Flow of Information Act, gained approval by voice vote from the House Judiciary Committee on Aug. 1, bringing it one step closer to passage. The House bill (HR 2102) was authored by Rep. Mike Pence, R-Ind., and introduced by Rep. Rick Boucher, D-Va.
The shield law is separate from the Senate (S 849) and House (HR 1309) FOI bills.
Those covered under the Free Flow of Information Act would include people who derive “financial gain or livelihood” from journalism, where journalism is defined as “the 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.”
Consideration of the bill had included a great deal of discussion over how to define who is covered under the act. The original version of the bill would have given protection to all “persons engaged in journalism,” but this definition was changed in committee as it sparked concern that even the most casual bloggers would be shielded under the Free Flow of Information Act. Concerns were also raised that such a broad definition could be abused by people who desire shield protection under the act. They would only have to post their information online to meet its criteria, even if they had no journalistic intentions.
Pence and Boucher said they would continue to tweak the language that defines a journalist before taking the proposed bill to the full House.
In enacting a shield law, the federal government would join 33 states and the District of Columbia, which have laws recognizing some degree of qualified privilege for a journalist — meaning they may not have to testify in court proceedings or reveal unpublished material or the identities of anonymous sources. Many shield laws allow for limited exceptions to the privilege, such as in cases where a journalist is the only source of information critical to a criminal or other government proceeding.
“We need this protection on the books.” said Pete Weitzel, coordinator of the Coalition of Journalists for Open Government. “It needs to become standard so as a reporter, you know what you can do.”
The lack of a shield law at the federal level creates confusion about using confidential sources and the protections offered under the law, particularly when journalists are accustomed to strong shield laws from their home states, Weitzel said. While many states’ privileges are qualified, some states’ shield laws are limitless, protecting journalists from revealing confidential sources or any unpublished information under any circumstances. These journalists must discern when they are offered full protection under the law and when they have none whatsoever.
Under the Free Flow of Information Act, a court would be able to compel disclosure of information or documents only in matters where alternative sources of such information have been exhausted, the information sought is essential to the investigation or proceeding, and there are “reasonable grounds” to believe that a crime has occurred. The court must also determine that disclosure is in 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.”
Further, in cases where the disclosure sought would identify or tend to identify a source, the court must also find that disclosure is necessary to prevent “significant specified harm” to national security or a terrorist act, imminent death or significant bodily harm to a person, or to identify a person who violated the law in revealing a trade secret, individually identifiable health information or other nonpublic personal information.
A shield law is critical not just to journalists but especially to sources, Weitzel said. Sources frequently want anonymity when they are not allowed to be sharing certain information and may suffer consequences if they are identified, and some sources may be unwilling to talk or provide information when anonymity cannot be guaranteed, he said.
An amendment to the bill added by the House panel provided that agents of foreign governments, including journalists from foreign government-controlled newspapers, and terrorist organizations cannot receive protection under the Free Flow of Information Act.
The Senate version of the bill (SB 1267), introduced by Sen. Richard Lugar, R-Ind., has seen no movement and is still under consideration by the Senate Judiciary Committee.