Congress Watch: Senate Judiciary Committee Amends Proposed Reporter Shield Law (S. 448)

The Senate Judiciary Committee continues to consider the Reporter’s Shield measure, increasing the chances that a bill will be approved during this Congress. More action is expected later this week on a recently amended S. 448 (“Free Flow of Information Act of 2009”)

Activity in the Senate Judiciary Committee last week and more expected this week provides some legislative momentum on a Reporter Shield Law. The House of Representatives approved its measure H.R. 985 on March 31, 2009. SeeFree Flow of Information Act of 2009” (H.R. 985) Passes House.

On September 10, 2009, an executive business meeting of the Senate Judiciary Committee unanimously consented to a substitute amendment (HEN09794) by Senators Specter, Schumer, Graham and Klobuchar. The revision addresses the Obama administration's “concerns” regarding national security and law enforcement provisions in the original act that was introduced on February 13, 2009.

The Senate Judiciary Committee set its next executive business meeting on September 17 for consideration of revised S. 448. As described by Senate Judiciary Committee Chair Patrick Leahy, the substitute measure would:

“create[ ] a qualified privilege to protect journalists from being forced to reveal their confidential sources. The bill contains exceptions to the privilege for criminal conduct and national security. No one would quibble with the notion that there are circumstances when the Government can and should have the right to compel information to keep us safe. But, many newsworthy stories concerning national security issues were published with the help of confidential sources, to the great benefit of the public. The Federal shield legislation strikes the right balance among these important objectives. Several Federal courts have recognized a reporters' privilege either by statute or common law for years. There is no evidence of a single circumstance where the privilege caused any harm to national security or to law enforcement.

“After years of debate and countless cases of reporters being held in contempt, fined and even jailed for honoring their professional commitment not to publicly reveal their sources, the time has come to enact a balanced Federal shield law. I encourage all Members of the Committee to support this important bill.”

Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009).

As reported by one of the bill's sponsors, Senator Arlen Specter, the revised bill clarifies the exception to the privilege in terrorism cases and it adopts a court-settled standard for defining a journalist who could claim the privilege. Senator Specter anticipated the changes, if adopted, would “ease passage” of the measure. Senator Specter commented: “We have come close to passing this bill in the past, and these changes should help us finally cross the finish line this Congress,” Senate Weighs New Shield Law, Reporters Would Have to Disclose Information in Special Cases, Washington Post (Sept. 13, 2009).

According to another co-sponsor, Senator Charles Schumer, the measure was a “bipartisan compromise ... creat[ing] a fair and efficient means to serve journalists and the news media, prosecutors and the courts, and, most importantly, the public interest.”

Senator Specter highlighted the changes:

“The Free Flow of Information Act seeks to change that by establishing a qualified privilege for reporters to withhold confidential source information obtained or created under a promise of confidentiality. The legislation has always accounted for the fact that, in certain instances, the public’s interest in national security, law enforcement and fair trials outweighs the public’s First Amendment interest in permitting reporters to protect the identify of sources. One of the changes announced Thursday clarifies an exception to the privilege when the information at issue concerns an act of terrorism. The bill now states that the government may compel information from a reporter when the information would ‘materially assist’ in not just preventing such threats, but in mitigating or identifying the perpetrator of such threats. Taken together with the existing provisions, the revised bill now outlines three types of instances where no privilege applies:

  • When a court determines that the information came from criminal conduct, or from observing criminal conduct
  • When the information is material to preventing, mitigating, or identifying an act of terrorism;
  • When the information is reasonably necessary to stop, prevent, or mitigate a specific case of death, kidnapping, or substantial bodily harm.

“In every other instance, the legislation provides for a balancing test that a judge must apply to weigh any national security considerations against the public’s right to a free press. Among other changes, in a case involving a leak of classified information, the bill no longer requires the government to try to prove that the leak was from an authorized person at the same time that the government is trying to figure out who that person is. The new bill also tightens the definition of a ‘covered person’ in response to concerns expressed by Senators Dick Durbin (D-IL) and Dianne Feinstein (D-CA). The new definition follows the ‘von Bulow’ standard, taken from the First Circuit Court of Appeals case; it applies only to reporters who have the intent to engage in a list of journalistic activities, and who engage in them regularly.”

“The bill also includes language to clarify that neither Foreign Intelligence Surveillance Act nor grand jury laws nor defamation or libel laws are affected by this bill.”

Statement of Senator Arlen Specter (Sept. 10, 2009).

Other changes from the original bill introduced on February 13, 2009 include:

  • Anyone engaging in activity not protected by the First Amendment could not claim the privilege
  • Only individuals engaged in “journalism,” with the intent to engage in journalism at the inception of the activity would be covered
  • Courts in which the privilege would be asserted would test the claim by weighing the public interest in the news story at issue
  • Establish a new review and appeal procedure that covers review of protected material, under seal
  • Provide that communications providers should not comply with an order to produce information until that order is enforced by a court or authorized in writing by a covered person
  • Explicitly state that the federal privilege would not pre-empt state laws governing defamation, slander and libel and will not modify grand jury secrecy laws or the Foreign Intelligence Surveillance Act

Also on the agenda for the Senate Judiciary Committee’s September 17th session is the
H.R. 985, the Free Flow of Information Act, which passed the House of Representatives on March 31, 2009. There are still some substantial gaps between the House and Senate versions of the Act. Most notable: under the Senate bill the definition of a journalist differs from the House. In the Senate version, anyone “engaged in journalism” is protected. The House version protects only journalists who report for a “substantial portion of the person’s livelihood or for substantial financial gain.” The Senate bill is narrower in coverage than the House bill. The Senate version protects only confidential sources and information. In contrast, the House version covers all newsgathering material and sources, whether or not the journalist promised confidentiality to the source.

While the Senate Judiciary Committee actions last week hint of much more activity on the effort to enact a federal reporter shield law, it is still competing with a host of other matters on the Congressional agenda this fall, such as health care reform and climate-change legislation. Competing with these measures, the question the Federal Evidence Blog asked in April of 2009 remains: “Will this be the year for a federal reporter shield law?”

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

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