In mid-May, under fire from journalists and civil liberties groups, the Obama administration’s Senate Liaison Ed Pagano requested that Senator Charles Schumer (D-NY) reintroduce a bill Schumer had sponsored in 2009 called the Free Flow of Information Act (FFIA).
There is currently no journalist shield law at the federal level, and journalists believe that had such a law existed, the 2012 clandestine seizure of two months worth of AP phone records by the Department of Justice could have been prevented. The House version is sponsored by Reps. Ted Poe (R-TX), John Conyers (D-MI), while the Senate version was introduced by Sens. Charles Schumer (D-NY) and Lindsey Graham (R-SC).
Existing State Laws
Currently, 49 states and the District of Columbia have some form of journalist shield laws on the books. Laws vary by state, with some providing protections in cases of civil, but not criminal, proceedings. Some of these laws protect journalists from having to reveal confidential sources, but not other relevant information. In many states, court precedents protecting journalists have been set. Wyoming is the only state with neither legislative nor judicial precedent protecting journalist privilege in civil or criminal cases.
What the Proposed Federal Law Would Do
The proposed federal law would create a federal level journalist protections that would offer statutory reporter’s privilege. Privilege could be invoked when federal authorities sought information such as identity of a source from a journalist engaged in news gathering. The law would give journalists some protection from penalties for refusing to identify sources and would enable journalists to request that a federal judge stop subpoenas for phone records like the ones seized from the AP in 2012. The level of protection for journalists would vary based on whether the issue at hand was a civil case, a criminal case not related to national security, or a national security case. Journalists would receive the greatest protection in civil cases, while cases involving national security would give journalists the least protection in courts.
Similar Federal Bills Have Failed in Recent Years
Congress has tried to pass similar bills in the past, but they have been derailed. In 2006, former Pennsylvania Senator Arlen Specter introduced a federal journalist shield bill, but an anti-media climate in both Congress and the Bush administration over journalists revealing information about anti-terrorism programs caused the bill to die in the Senate Judiciary Committee. In 2009, Rep. Conyers of Michigan sponsored a House version of the bill that passed twice, but a Senate version of that bill (sponsored by Senator Schumer) died awaiting a floor vote in 2010 due to Congressional fury over WikiLeaks publication of secret government documents.
Differences Between Current House and Senate Versions
One of the main differences between the current House and Senate versions of the bill is how student journalists and possibly some freelancers are treated. The House version says that to be considered a journalist, the individual must be earning income from journalism. The Senate bill has no such restriction.
Currently, the Senate bill SB 987 has only been introduced and referred to the Senate Judiciary Committee. No votes have taken place as of this posting. House Resolution 1962 has been referred to the House Judiciary Committee.
Those in the newspaper industry, both print and online, are expected to follow progress of the FFIA closely. The recent news stories surrounding the seizure of the AP phone records and the investigation of the personal email account of Fox News reporter James Rosen in the matter of a story concerning North Korean missile tests have resulted in heavy criticism. Both the DOJ and the Obama administration have been criticized by people and organizations across a wide range of ideologies. In response, President Obama ordered an investigation into how the AP seizure was handled, and with the introduction of the FFIA, journalists are more hopeful that a federal journalist shield law may finally become reality.
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