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House Passes the Free Flow of Information Act

October 16, 2007

The House has just passed the Free Flow of Information Act, also known as the federal shield law. The bill passed by a vote of 398-21, a margin that would easily override the veto which the White House has promised (pdf). The bill provides journalists with a qualified privilege as to sources and information, while at the same time, recognizing the need for effective law enforcement and robust national security. A blogger who regularly engages in journalistic activities — such as gathering and publishing news and information for dissemination to the public — and does so for a substantial portion of the person's livelihood or for substantial financial gain would be covered by the shield as a journalist.

Speaker Nancy Pelosi spoke in favor of the bill on the floor:

Speaker Pelosi: “When I was a ranking member of the Intelligence Committee, I encouraged President Clinton to veto the Intelligence Committee budget one year because it made it easier to prosecute journalists. We fixed those provisions and passed a bill that both protected our nation and protected our fundamental freedoms. Mr. Speaker, we seek today to protect the freedom of the press that has served our nation so well. We also seek to make clear to confidential sources that they will be protected in most circumstances when they bring forward public evidence of waste, fraud, abuse in government and in the private sector. As we protect and defend our nation, we must now protect and defend the Constitution by enabling our press to be free as our founders envisioned.”

Chairwoman Louise Slaughter of the Rules Committee spoke on the issues at hand during debate on the rule:

Chairwoman Slaughter: “Madam Speaker, should we in any way compromise the freedom of the press, we will deny our citizens their right to be informed about their government, and retreat from the true nature of the political system that made our country unique. Our fore fathers saw fit to enshrine this belief in the first sentences of our Bill of Rights and this Congress must continue to guarantee those rights. And today, Madam Speaker, as we debate extending these protections to the press, we must pause to remind the press of their obligation to the public. I regret to say that for much of the recent past, some of the press which was intended to be the watchdog of our government, has quickly transformed into nothing more than a mouthpiece — exemplified in its coverage and lack of questions on the Iraq War. M. Speaker, we saw time and time again the tough questions – expected by the American people before and after the invasion in Iraq – replaced with nothing more than patriotic propaganda and White House talking points.”

Read details of the provisions in the bill:

The bill protects journalists' sources unless there is a strong public interest in compelling disclosure. The bill requires journalists to testify at the request of criminal prosecutors, criminal defendants and civil litigants who have shown by a preponderance of the evidence that they have met the various tests for compelled disclosure.  Prosecutors would have to show that they had exhausted alternative sources before demanding information. They would need to show that the sought-after material was relevant and critical to proving a case, and that the public interest in requiring disclosure would outweigh the public interest in news gathering.

The bill is carefully balanced — protecting national security and law enforcement. The bill contains provisions to ensure that the privilege would not impair law enforcement's efforts to prevent acts of terrorism, threats to national security, and death or bodily harm to members of the public, or to identify a person who has disclosed significant trade secrets or certain financial or medical information in violation of current law.

The bill includes special rules for cases involving leaks of classified information and where the journalist witnesses the crime. The bill will enable federal law enforcement authorities to obtain an order compelling disclosure of the identity of a source in the course of an investigation of a leak of properly classified information.  The bill provides that the disclosure of a leaker's identity can be compelled whenever the leak has caused or will cause “significant and articulable harm to the national security.” The bill also permits law enforcement to obtain an order compelling disclosure of documents and information obtained as the result of eyewitness observations of alleged criminal or tortious conduct by journalists, as well as criminal conduct by journalists themselves.

Over the last few years, more than 40 reporters have been subpoenaed for the identities of confidential sources in nearly a dozen cases, with some actually going to jail.  New York Times reporter Judith Miller was imprisoned from July to September last year for contempt of court for failing to comply with a court order to identify her source in stories that she wrote for the Times regarding the disclosure of the identity of former Central Intelligence Agency covert agent Valerie Plame Wilson.

Media shield laws have worked on the state level without hampering law enforcement or national security. 49 states and the District of Columbia recognize a reporter's privilege either through state laws or court decisions.  In a brief filed with the Supreme Court, a bipartisan group of 34 state attorneys general pointed out that the lack of a clear standard in federal court is undermining state laws.  The legislation is a reasonable and well-balanced approach that will provide much needed clarity at the federal level.

Major national print and broadcast media companies support this legislation, including the Associated Press, the National Association of Broadcasters, Bloomberg News, CBS, ClearChannel, CNN, Cox, Gannett, Hearst, NBC, News Corporation, The New York Times, TIME, and The Washington Post.