A Magazine by the Society of Professional Journalists

Federal shield law’s future remains uncertain

By Quill


The proposed federal shield law remains in limbo after Congress left on August recess. Despite some opposition, SPJ leaders are still hopeful the bill will soon become a law.

The opposition, which includes former national security and law enforcement professionals, claim the law isn’t clear enough about who would be covered by the law and what specific risks it might propose to national security.

“We are advocating for the bill as it is currently written,” SPJ President Clint Brewer said. “It clearly addresses both of the oppositions’ concerns in its present state.”

The bill would cover anyone who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes information of public interest” for dissemination to the public.

A federal shield law would give journalists the right to refuse to reveal information and sources obtained during the newsgathering process with a few exceptions, including where national security is at issue. The qualified privilege would be similar to those afforded to lawyers and their clients, clergy and their penitents, and psychotherapists and their patients.

As for national security, SPJ leaders point to Section 5 of the bill, which states that journalists must be ordered to reveal confidential sources and documents if, by a preponderance of evidence, a federal court finds that the protected information would assist in preventing a specific case of terrorism against the United States or significant harm to national security that would outweigh the public interest in newsgathering and maintaining a free flow of information to citizens.

“National security is not something SPJ or fellow federal shield law supporters are ignoring in the effort to protect journalists’ confidential information and sources,” Brewer said. “This bill addresses the opposition’s concerns about national security. However, it would require law enforcement officials and prosecutors to exhaust all other investigative avenues before turning to journalists. ”

Forty-nine states have common-law, statutory or rule-based protections in place to shield journalists and their confidential sources from compelled testimony.