The recent attention on the use of federal grand jury subpoenas to obtain the telephone records of reporters has refocused the issue of protecting First Amendment rights and striking the balance to safeguard evidence from the media; as calls for a Reporter Shield Law are renewed, last week, the Free Flow of Information Act of 2013 was reintroduced in the House of Representatives and Senate along with other legislation in Congress
Over the past few years, the Federal Evidence Blog has covered the issue of a possible journalists' privilege under a Reporter's Shield Law. See, e.g., Congress Watch: “Free Flow of Information Act of 2009” (H.R. 985) Passes House ; Congress Watch: S. 448 Reporter Shield Bill Back On Track?. While bipartisan legislative support has grown, as one observer noted, "Since 2009, the movement to adopt a federal statutory journalists’ privilege appears to have lost momentum." Kathleen Ann Ruane, Journalists’ Privilege: Overview of the Law and Legislation in Recent Congresses, Congressional Research Service (Jan. 19, 2011).
Since May 13, 2012, when news first broke concerning the use of federal grand jury subpoenas to obtain telephone records of reports, there has been a renewed focus on protecting the rights of reporters to gather information and First Amendment rights. Last week the Free Flow of Information Act was reintroduced in the House of Representatives and Senate. See H.R. 1962, 113th Cong., 1st Sess. (May 14, 2013) (introduced by Rep. Ted Poe (R-TX)); S. 987, 113th Cong., 1st Sess. (May 16, 2013) (introduced by Sen. Charles E. Schumer (D-NY)). 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 May 16, 2013, Representative Justin Amash (R-MI) introduced H.R. 2014, the Telephone Records Protection Act, with nine co-sponsors. The measure would require a court order based upon “specific and articulable facts” that the telephone records are “relevant and material to an ongoing criminal investigation.”
On May 13, 2013, the first news reports noted that federal prosecutors had "seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012." See Mark Sherman, AP Story, "Gov't obtains wide AP phone records in probe," (May 13, 2013). On the same day, Associate Press (AP) President and Chief Executive Officer Gary B. Pruitt wrote to Attorney General Eric H. Holder, Jr. stating that "[t]here can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters," which was first revealed on May 10, 2013 in a letter from United States Attorney Ronald C. Machen Jr. to AP General Counsel Laura Malone. On the next day, Deputy Attorney General James M. Cole responded in a letter to CEO Pruitt, defending the use of the subpoenas for the telephone records under Department of Justice policy. See 28 C.F.R. § 50.10 (regulating the use of subpoenas for the telephone records of the news media); see also U.S. Attorney's Manual § 9-13.400 (News Media Subpoenas; Subpoenas for Telephone Toll Records of News Media; Interrogation, Arrest, or Criminal Charging of Members of the News Media).
Other media groups have raised concerns about the scope and use of the subpoenas. For example, on May 14, 2013, the Bruce D. Brown, Executive Director, and Gregg P. Leslie, Legal Defense Director, of the Reporters Committee for Freedom of the Press wrote to Attorney General Holder and Deputy Attorney General Cole expressing their view that department standards were not followed:
In the thirty years since the Department issued guidelines governing its subpoena practice as it relates to phone records from journalists, none of us can remember an instance where such an overreaching dragnet for newsgathering materials was deployed by the Department, particularly without notice to the affected reporters or an opportunity to seek judicial review. The scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public’s interest in reporting on all manner of government conduct, including matters touching on national security which lie at the heart of this case.
In this instance, where the Department subpoenaed two months of records related to 20 telephone lines, including records from major AP bureaus and the home phone and cell phone records of individual journalists, the Department appears to have ignored or brushed aside almost every aspect of the guidelines [under 28 C.F.R. § 50.10 and U.S. Attorney's Manual § 9-13.400].
The Department’s actions demonstrate that a strong federal shield law is needed to protect reporters and their newsgathering materials in a court of law where the adversarial process ensures a fair weighing of the issues. While Congress should provide that remedial legislation, there is still much that this Department can do to mitigate the damage it has caused.
It should immediately return the telephone toll records obtained and destroy all copies, as requested by The Associated Press. If it refuses, it should at the very least segregate these records and prohibit any further use of them at this time. It should explain how government lawyers overreached so egregiously in this matter and describe what the Department will do to mitigate the impact of these actions. Additionally, the Department must also publicly disclose more information on who has had access to the records and what protections were taken to ensure that information unrelated to a specific criminal investigation was not utilized by any Department employees.
Prior Congressional Action
A few years ago bipartisan legislative support was growing for a Reporter Shield Law. The House of Representatives twice passed legislation which would establish a journalists' privilege on March 31, 2009 by voice vote, and on October 16, 2007 by a vote of 398 to 21. See 155 Cong. Rec. H4204 (March 31, 2009) (passage of H.R. 985, 111th Cong., 1st Sess., Free Flow of Information Act of 2009); H. Rep. No. 61, 111th Cong., 1st Sess. (2009); 153 Cong. Rec. H11563-67 (Oct. 16, 2007) (debate on H.R. 2102, 110th Cong., 1st Sess., Free Flow of Information Act of 2009); 153 Cong. Rec. H11574-75 (Oct. 16, 2007) (passage of H.R. 2102 by a vote of 398 to 21); H. Rep. No. 370, 110th Cong., 1st Sess. (2007).
In the Senate, the Senate Judiciary Committee has twice reported out legislation which then died in the Senate. On February 13, 2009, S. 448 was introduced by Senator Arlen Specter. See 155 Cong. Rec. S2340-43 (Feb. 13, 2009) (statement upon introduction). On September 10, 2009, the measure was amended in the Senate Judiciary Committee. See Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009); Statement of Senator Arlen Specter (Sept. 10, 2009). On December 10, 2009, the bill was reported out by the Senate Judiciary Committee without a report, with no further action in the Senate. In the prior Congress, on October 22, 2007, the Senate Judiciary Committee reported out S. 2035, 110th Cong., 1st Sess., without a report to the Senate. See 154 Cong. Rec. S11329-30 (Sept. 10, 2007) (statement of Sen. Specter on introduction); see also Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009) (noting the "Committee favorably reported a similar measure, cosponsored by Senators Lugar, Dodd, Specter, Schumer, Graham and myself, by a strong, bipartisan 15 to 4 vote"). However, on July 30, 2007, the Senate rejected a cloture motion to proceed with debate and the measure died. See 154 Cong. Rec. S7710-22 (July 30, 2007) (cloture not invoked by a vote of 51 - 43) (Under Senate Rule XXII, 60 votes are normally required to invoke cloture or end debate).
During his confirmation hearing, Attorney General Eric Holder stated that he supports a federal shield law if "carefully crafted." See also Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009) ("I was pleased that, during his confirmation hearing, Attorney General Eric Holder expressed his support for a carefully crafted Federal shield law. He repeated that support when he testified before this Committee in June.").
While Reporter Shield legislation has received strong bipartisan support in the House of Representatives in prior Congresses, with the legislation introduced last week in both chambers the debate will recommence. Whether the legislation will be on a fast-track or will face further challenges in the Senate remains to be seen. The Federal Evidence Review will continue to monitor the developments on this important issue.
For past blog posts on the reporter shield legislation, see Reporter Shield Law.
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