Congress Watch: “Free Flow of Information Act of 2009” (H.R. 985) Passes House

Measure is sent to the Senate for consideration; will this be the year for a federal reporter shield law?

Congress took a significant step toward the passage of a reporter shield law this week. On March 31, 2009, only a day after it was reported favorably out of the House Judiciary Committee, H.R. 985, the Free Flow of Information Act, passed the House of Representatives under Suspension. The bill now goes to the Senate for consideration. “With its vote tonight,” noted House Speaker Nancy Pelosi in a press release after its passage, “the House seized an opportunity to strengthen and protect the freedom of the press.” Although H.R. 985 is identical to H.R. 2102 which passed the House during the 110th Congress on October 16, 2007 by a vote of 398-21, whether the measure will have as smooth sailing in the Senate is uncertain.

With House passage of H.R. 985, the stage is set to return where consideration of a reporter shield law was left last year when an identical measure stalled in the Senate in July 2008, despite bipartisan support. The Senate Judiciary Committee had passed by a 15-2 vote a different version of the shield law (S. 2035,) in 2008, but the measure was never put to a vote in the Senate because of failure to invoke cloture, which would have allowed discussion of the bill to proceed. A bill that is identical to S.2035 of 2008 was introduced in the Senate on February 13, 2009 (S. 448) and referred to the Senate Judiciary Committee.

Another concern over enactment of a reporter shield law in the prior Congress was the opposition by the previous administration. While the Bush Administration opposed the reporter shield law in 2008, the Obama Administration appears to have expressed general support for such a law. During Attorney General Eric Holder’s confirmation hearing, he noted that he did not hold the same view as former Attorney General Michael Mukasey, who threatened to recommend a veto of the bill. Holder stated he supports a federal shield law if "carefully crafted." In the previous Congress, then-Senator Barack Obama and Senator John McCain voiced their support for the predecessor to S. 448 and eventually became cosponsors of the bill. However, the Obama Administration has taken no position so far on the specifics of H.R. 985 or S. 448, a point not lost on Republican opponents of H.R. 985 during the debate in the House on March 31.

As introduced, a summary of the House measure provides that it would:

  • “Prohibit[ ] a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document unless a court makes specified determinations by a preponderance of the evidence, including determinations: (1) relating to exhaustion of alternative sources, (2) that the testimony or document sought is critical; (3) that disclosure of the information source's identity is necessary; and (4) that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.
  • “Define[ ] "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.
  • “Require[ ] the content of compelled testimony or documents to be limited and narrowly tailored.
  • “Prohibit[ ] construing this Act as applying to civil defamation, slander, or libel claims or defenses under state law.
  • “Exempt[ ] certain criminal or tortious conduct.
  • “Appl[y] … to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.”

According to the House Judiciary Committee's Report on H.R. 985, the need for the reporter shield law derives in part from the confused state of the law:

“In the aftermath of Branzburg [v. Hayes, 408 U.S. 665, 707 (1972) (Journalist could not rely on an absolute First Amendment-based privilege to refuse to testify when questioned by a grand jury, unless the grand jury investigation was ‘‘instituted or conducted other than in good faith.’’))] been recurring calls for a Federal shield law or for a reconsideration of that decision. Although nearly one hundred bills was introduced in the 6 years after the Branzburg decision, none of these measures was passed, a failure that is partially attributed to an inability to reach consensus on the definition of ‘‘journalist,’’ and to the insistence of the press on an absolute privilege, not a qualified one. In 1970 the Attorney General promulgated guidelines to govern the issue for the Department of Justice. These guidelines require the Department to: balance First Amendment values with the need for the information sought by the subpoena; make a reasonable attempt to get the information from alternative sources; negotiate with the news media before issuing a subpoena; obtain Attorney General approval before issuing a subpoena; and specify reasonable grounds for the Department’s belief that the information sought by the subpoena is essential. Also since the Branzburg decision, Federal courts have continued to develop a common law privilege on a case-by-case basis. Some Federal courts have recognized a qualified journalist’s privilege in non-grand jury settings, some have extended it to both civil and criminal proceedings, and some have even extended the privilege to non-confidential sources. This lack of uniformity among the Federal courts has prompted calls from journalists and scholars for Federal legislation."

H. Rep. No. 61, 111th Cong., 1st Sess. 10 (2009) (footnotes omitted).

In a dissent by five Republican members of the House Judiciary Committee, Representatives Lamar Smith, F. James Sensenbrenner, Darrell Issa, Steve Kind and Gregg Harper argued that H.R. 985 would create a:

“new privilege [that] has no precedent in American legal history. All H.R. 985 does is create a privilege that allows reporters to avoid a civic duty. The bill goes beyond promoting a free press; it confers on the press a privileged position. It exempts journalists from the same responsibilities that we are all held to in the context of an investigation…. This bill is not about protecting the public’s right to know about corruption or malfeasance. It is about giving a reporter a special privilege at the expense of our national crime-fighting efforts. Also, we have a new President who has said he generally supports the legislation. But conceptual support is not an unqualified endorsement of the bill’s language. We may very well benefit from listening to the President and his Attorney General about the specific text of H.R. 985. As we have seen in recent days, the President sometimes modifies his support of legislation he has previously encouraged. To illustrate, it is very possible that the Justice Department may advocate that we change a number of provisions. This may include minimizing the restrictions on disclosure of source identification, eliminating the public interest ‘‘balancing test’’ when national security is involved, and deleting the ‘‘necessity’’ standard when the government is trying to acquire information to prevent a terrorist attack. These and other changes would improve the bill. We hope the Administration and the bill supporters are open to working with us on further refinements to H.R. 985.”

H. Rep. No. 61, 111th Cong., 1st Sess. 12-13 (2009).

The House measure has been sent to the Senate for consideration. On February 13, 2009, Senator Arlen Specter introduced "The Free Flow of Information Act of 2009." See S. 448; see also The Free Flow of Information Act of 2009 Is Introduced In the Senate (S. 448).

For past posts on the reporter shield legislation, see Reporter Shield Law.

Federal Rules of Evidence