Congress Watch: The Free Flow of Information Act of 2009 Is Introduced In the Senate (S. 448)

Legislation passed the House but could not overcome a cloture vote in the Senate in the last Congress

In the last Congress, a Reporter Shield law received strong support in the House but stalled in the Senate. The legislation would protect a reporter from legal processes that would compel the reporter to produce documents and to provide testimony or identify confidential informants. On October16, 2007, the House of Representatives overwhelmingly passed "The Free Flow of Information Act of 2007," by a vote of 398-21. See H.R. 2102. On October 4, 2007, the Senate Judiciary Committee approved a similar measure by a 15-2 vote and the measure died in the Senate. See S. 2035. However, on July 30, 2008, the legislation could not overcome a cloture vote in the Senate. See 154 Cong. Rec. S2341 (Feb. 13, 2009) (discussing consideration of legislation).

The new Congress will have another opportunity to consider this issue. On February 13, 2009, Senator Arlen Specter introduced "The Free Flow of Information Act of 2009." See S. 448. As Senator Specter explained:

“This bipartisan legislation would establish a qualified reporters' privilege protecting them from being compelled to identify confidential source information. The bill seeks to reconcile reporters' need to maintain confidentiality, in order to ensure that sources will speak openly and freely with the media, with the public's right to effective law enforcement and fair trials. The situation in the United States today is that journalists are subject to a compulsory process to disclose confidential informants--at least in Federal courts. At the State level, there are many laws providing qualified privileges for journalists.”
154 Cong. Rec. S2340 (Feb. 13, 2009) (remarks of Senator Specter). He also noted the need for a uniform standard as different measures were employed in federal civil cases:

“With respect to Federal civil cases, 9 of the 12 circuits apply a balancing test when deciding whether journalists must disclose confidential sources. One circuit affords journalists no privilege in any context. Two other circuits have yet to decide whether journalists have any privilege in civil cases. Meanwhile, 49 States plus the District of Columbia have recognized some form of reporters' privilege within their own jurisdictions. Thirty-one States plus the District of Columbia have passed some form of reporter's shield statute, and 18 States have recognized a privilege at common law.
“There is little wonder that there is a growing consensus concerning the need for a uniform journalists' privilege in Federal courts. This system must be simplified.”
154 Cong. Rec. S2341 (Feb. 13, 2009) (remarks of Senator Specter). The legislation has been referred to the Senate Judiciary Committee.

For more information on the legislation in the last Congress, see:


Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence