Federal Evidence Review

After many weeks of being listed on the Senate Judiciary Committee business calendar, on December 10, 2009, the Senate Judiciary Committee approved by a vote of 14 to 5 an amended version of S. 448, the Free Flow of Information Act of 2009. The bill would create a federal qualified privilege that could be claimed by a journalist to protect the identity of confidential sources. The amended bill is now slated for consideration on the Senate floor. However, since it is listed as number 225 on the Senate's Legislative Calendar under General Orders, consideration before the end of the year remains highly unlikely.

At the beginning of this year, the Federal Evidence Blog questioned whether 2009 would be the year for adoption of this new federal privilege for journalists. With less than two weeks remaining, it seems unlikely that 2009 will be the year for its creation. Adoption of the Free Flow Of Information Act by the House (H.R. 985) last March, and approval of a different version by the Senate Judiciary Committee (S. 448) last week, leaves the legislative affairs about where they were during the last session when the House had approved the shield and the Senate Judiciary Committee had recommended its approval as well.

As previously reported, the bill approved by the Senate Judiciary Committee last week was the result of amendments made since it was introduced in February 2009. The bill continues to change as accommodations are reached made between the committee’s Democratic majority and the Republican minority, as well as by compromises between the committee and the White House.

Even this compromise was not immune to amendment at the Senate Judiciary Committee’s December 10, 2009 Markup session. By the time the committee voted to approve the measure, only four of over twenty amendment proposals had been adopted. These four amendments included:

Infrastructure Protection: An amendment by Senator Jon Kyl (R-Ariz.) that allows the privilege to be broken where there is a danger to the nation's critical infrastructure.
• Conditions For Compelled Disclosure: Another amendment by Senator Jon Kyl to weaken the privilege in criminal cases by permitting the compelled testimony from a reporter where the information is essential in any way to a case, not just to the particular question of a defendant’s guilt or innocence.
• Child Protection: An amendment by Senator Orrin Hatch (R-Utah) that allows the privilege to be broken when the crime involved have been or will be perpetrated against children
• Reports Required: An amendment introduced by Senator Kyl to require the Department of Justice to report to Congress in 2013 on the number of times a court failed to compel a reporter to testify or otherwise produce documents in a federal proceeding using the privilege provided by the Act and whether the Act creates any procedural impediments to law enforcement activities.

Many more amendments were considered by the committee, but failed to be adopted. Three of the most notable amendments that failed at the December 10 Mark Up session included:

• Definition Of Journalist: An amendment by Senator Dianne Feinstein (D-CA) that would attempt to tightened the definition of journalist under the Act. As chair of the House Intelligence Committee, Senator Feinstein’s amendment required that a person claiming the privilege be a salaried employee of, or independent contractor for, a media entity and that the person claiming the privilege not be working anonymously or under a pseudonym. Senator Feinstein explained that the reason for her amendment was that the proposed journalist’s privilege might undermine national security concerns and that as written the law is too broad and could provide protection to criminals or terrorists who might try to claim the privilege as a journalist.
• Privilege To Sunset in Four Years: An amendment proposed by Senator Kyl, which was defeated by the committee, would have sunset the privilege in 2013
• Grand Jury Leaks: Another Senator Kyl amendment that was defeated would have provided a “carve-out” for grand jury leaks, so that the privilege would not apply to a breach of the grand jury secrecy.

Although the Senate Judiciary Committee voted to recommend adoption of the measure last week, no version of the current measure, as amended, is available yet. Apparently in reporting the Committee’s approval of the bill, if it is considered on the Senate floor, it will be “[w]ithout written report” by the committee. The absence of a written report at this late stage suggests the obvious – that the approval probably comes too late to make 2009 the year when Congress will approve a reporter shield law.

The Federal Evidence Review will continue to monitor action on the House and Senate measures. For more information concerning the legislation, see Free Flow of Information Act of 2009 Legislative History Page.