Federal Media Shield Law Headed To Senate Floor?

Yesterday the Senate Judiciary Committee approved a substitute measure for the Free Flow of Information Act, S. 987 (Schumer), by a 13-5 vote. The measure now goes to the full Senate for consideration. If passed by the Senate, the bill would then go to the House of Representatives, which has passed comparable legislation in prior years. Will 2013 be any different than previous years when a media shield proposal has been unable to be enacted?

The bill approved by the Senate Judiciary Committee specifies the circumstances under which the media can avoid being compelled to disclosed confidential sources. While recent passage by the Senate Judiciary Committee substantially improves the chances the measure may become law, some formidable obstacles remain. Nonetheless, momentum appears to be gaining for legislation based on these recent developments, which are summarized below:

  1. Department Of Justice Guidelines On The Media Following Recent Criticism (July 12, 2013)
  2. Free Flow Of Information Act Legislation Introduced (May 2013)
  3. House Measure: H.R. 1962 (May 14, 2013)
  4. Senate Measure: S. 987 (May 16, 2013)
  5. S. 987 Amended And Passed By The Senate Judiciary Committee (Sept. 12, 2013)
  6. Recent Judicial Action (July 19, 2013)

1. Department Of Justice Guidelines

As reported by the Federal Evidence Blog in July, the Department of Justice issued new guidelines concerning federal prosecutors attempts to obtain evidence from members of the media. New DOJ Guidelines Impose Higher Restrictions To Obtain Evidence From Members Of The Media (July 15, 2013). The guidelines were issued following criticism of the recent use of subpoenas and legal process issues to reporters for information. See, e.g., Congress Watch: Renewed Focus On Reporter Shield Law Following Use Of Subpoenas For Reporters' Telephone Records (May 20, 2013).
The guidelines included changes in the department's procedures, such as requiring that Attorney General approve any "search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media." See Department Of Justice, Report On Review Of News Media Policies (July 12, 2013) (DOJ Media Report).

2. Free Flow Of Information Act Legislation Introduced

On May 14, 2013, Representative Ted Poe of Texas introduced H.R. 1962. Two days later, on May 16, 2013, S. 987 was introduced in the Senate by Senator Charles E. Schumer. Both proposals were entitled the "Free Flow Of Information Act," although they differed in their details. See also Congress Watch: Renewed Focus On Reporter Shield Law Following Use Of Subpoenas For Reporters' Telephone Records (May 20, 2013).

3. House Measure: H.R. 1962

The only proposal receiving attention in the House is H.R. 1962, the Free Flow of Information Act of 2013. This bill was introduced on May 14, 2013 by Representative Ted Poe of Texas and currently lists over 50 co-sponsors. Following its introduction, the measure awaits consideration by the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. As summarized by the Library of Congress' Congressional Research Service, the measure contains the following provisions:

  • Prohibition On Government: "Prohibits 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 related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.
  • Protected Entity: "Defines "covered person" as a person who, for financial gain or livelihood, is engaged in journalism, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain designated foreign terrorist organizations.
  • Activity Protected: Defines "journalism" as the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.
  • Scope: "Requires the content of compelled testimony or documents to be limited and narrowly tailored."
  • Exemptions: "Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law."
  • Secondary Protections: "Applies this Act 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."

4. Senate Measure: S. 987

The Senate version of the Free Flow of Information Act, introduced by Senator Schumer, S.987, appears to be the only proposal advancing in the Senate. This bill was introduced on May 16, 2013 apparently at the urging of the White House and Department of Justice. The measure underwent some revisions after the Department of Justice Guidelines were announced, and the version that was acted upon the the Senate Judiciary Committee included several adjustments. The revised version was placed before the Senate Judiciary Committee in its Executive Session on September 12, 2013. As summarized by the Congressional Research Service of the Library of Congress, the measure has the following provisions:

  • Prohibition On Government: "Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government with the power to issue a subpoena or other compulsory process), in any proceeding or in connection with any issue arising under federal law, from compelling a covered person to disclose protected information, unless a federal court in the jurisdiction where the compulsory process has been or would be issued determines, after providing notice and an opportunity for the covered person to be heard, that all reasonable alternative sources have been exhausted and that separate specified conditions have been met depending on whether the matter is a criminal investigation or prosecution."
  • Protected Entity:"Defines a "covered person" as a person (including a supervisor, employer, parent company, subsidiary, or affiliate of such person) who:
    • with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes on such matters by conducting interviews, making direct observations of events, or collecting, reviewing, or analyzing original writings, statements, transcripts, photographs, recordings, tapes, data, or other information;
    • has such intent at the inception of the process of gathering the news or information sought; and
    • obtains such news or information to disseminate by print, broadcasting, mechanical, photographic, electronic, or other means."
  • Exclusions: "Excludes from the definition of covered person foreign powers and their agents, members or affiliates of foreign terrorist organizations, specially designated global terrorists, and other organizations and people who are reasonably likely to commit, attempt, or provide support for terrorism."
  • Protected Entity: "Defines "protected information" as:
    • information identifying a source who provided information under a promise or agreement of confidentiality made by a covered person as part of engaging in journalism; or
    • any records, contents of a communication, documents, or information that a covered person obtained or created as part of engaging in journalism and upon a promise or agreement of confidentiality.
  • Protections - Criminal: "Requires, in a criminal investigation or prosecution, a determination by the court that:
    • if the party seeking to compel disclosure is the federal government, based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe a crime has occurred;
    • based on such public or source information, the protected information is essential to the investigation or prosecution or to the defense against the prosecution;
    • the Attorney General certifies that the decision to request compelled disclosure was consistent with federal regulations, if compelled disclosure is sought by a member of the Department of Justice (DOJ) in circumstances governed by regulations specifying DOJ policy with respect to the news media; and
    • the covered person has not established by clear and convincing evidence that disclosure would be contrary to public interest, including the interest in gathering and disseminating information or news as well as maintaining the free flow of information and the public interest in compelling disclosure, including the extent of any harm to national security."
  • Protections - Other: Requires, in matters other than criminal investigations or prosecutions, based on public information or information obtained from a source other than the covered person, that:
    • the protected information sought is essential to the resolution of the matter, and
    • the party seeking to compel disclosure establishes that the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.
  • Exemptions: "Exempts from such requirements:
    • information or items obtained as the result of the eyewitness observations of, or obtained during the course of, alleged criminal conduct by the covered person (provided that the alleged criminal conduct is not the act of communicating the actual documents or information at issue), including any physical evidence or visual or audio recording of the conduct;
    • protected information that is reasonably necessary to stop, prevent, or mitigate a specific case of death, kidnapping, substantial bodily harm, certain offenses against minors, or the incapacitation or destruction of critical infrastructure; and
    • protected information sought by the federal government in a criminal matter under specified circumstances to prevent, mitigate, or identify the perpetrator of an act of terrorism or other acts reasonably likely to cause significant and articulable harm to national security. Sets forth special requirements with respect to criminal investigations or prosecutions of an allegedly unlawful disclosure of properly classified information."
  • Secondary Protections:Additional provisions:
    • Directs federal courts to give appropriate deference to a specific factual showing submitted by the head of any executive branch agency concerned.
    • Sets forth procedures with respect to information sought from electronic communications service providers.
    • Provides for judicial review, submissions under seal, and expedited appeals.

5. S. 987 Amended And Passed By The Senate Judiciary Committee

A major focus of the Senate Judiciary Committee's discussion on September 12, 2013, concerned Senator Feinstein's amendment which attempted to provide a more specific definition and limitation in the bill's coverage. Whereas the original bill protected only a "covered person" who is one who investigates events and obtains material to disseminate news and information to the public. Senator Feinstein's amendment protects only "covered journalists" and provides a definition of who a covered journalist is. That new definition is a bifurcated one. Either the covered journalist is what would have been a "covered person" under the original bill, with the requirement that such person be an employee, independent contractor, or agent of an entity that disseminates news or information; that individual would have to have been employed for one year in "within the last 20 or three months within the last five years." In addition to this professional journalist, the bill would also protect as a "covered journalist" student journalists or a person who did a "considerable amount" of freelance work in the last five years. In addition, the amendment would authorize a federal judge to declare a person a "covered journalist" so that they would be protected by the law.

The text of the amendment is reflected below, in the text of some of the Feinstein amendment, with the section that substantially incorporates the definition of who was a "covered person" in the original legislation presented in bold italics:

ALB13767 S.L.C. (Feinstein) Vote: 13-5 - Pass

(1) COVERED JOURNALIST. --

(A) DEFINITION.—The term ‘‘covered journalist’’—

(i)
(I) means a person who—

(aa) is, or on the relevant date, was, an employee, independent contractor, or agent of an entity or service that disseminates news or information by means of newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program; magazine or other periodical, whether in print, electronic, or other format; or through television or radio broadcast, multichannel video programming distributor (as such term is defined in section 602(13) of the Communications Act of 1934 (47 U.S.C. 18 522(13)), or motion picture for public showing;


(bb) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, engages, or as of the relevant date engaged, in the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters by—
(AA) conducting interviews;
(BB) making direct observation of events; or
(CC) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;

(cc) had such intent at the inception of the process of gathering the news or information sought; and

(dd) obtained the news or information sought in order to disseminate the news or information to the public; or


(II) means a person who—

(aa) at the inception of the process of gathering the news or information sought, had the primary intent to
investigate issues or events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, and regularly conducted interviews, reviewed documents, captured images of events, or directly observed events;

(bb) obtained the news or information sought in order to disseminate it by means of a medium set out in subclause (I)(aa) of this section; and

(cc) either—

(AA) would have been included in the definition in subclause (I)(aa) of this section for any continuous one-year period within the 20 years prior to the relevant date or any continuous three-month period within the 5 years prior to the relevant date;

(BB) had substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications by a medium set out in subclause (I)(aa) of this section within 5
years prior to the relevant date; or

(CC) was a student participating in a journalistic medium at an institution of higher education (as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002)) on the relevant date;

(ii) includes a supervisor, editor, employer, parent company, subsidiary, or affiliate of a person described in subclause (I) or (II) of clause (i); and
(iii) does not include any person or entity—
(I) whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish
primary source documents that have been disclosed to such person or entity without authorization; ....

Failing Amendments

A number of other amendments failed, as indicated in the following chart:

Proposed Amendment Sponsor Vote Nature Of Amendment
ALB13683 Sessions Vote: 7-11 - Defeated amend act so that it would not apply to grand jury information
OLL13447 Sessions Vote: 6-11-1 (present) - Defeated amend act so that it would not apply to leaks of classified information
ALB13698 Cornyn Vote: 7-11 - Defeated amendment would "prevent government employees and officials from targeting private and law-abiding citizens"
ALB13701 Cornyn Vote: 7-11 - Defeated adds to the amendment's exemptions so that it would include not only an investigation or prosecution where a disclosure would material assist the federal government in "preventing, mitigating, or identifying the perpetrator of an act of terrorism" but also an act of "providing material support or resources ... to a terrorist or terrorist organization."
ALB13708 Cornyn Vote: 4-13-1 (pass) - Defeated strikes out original definition of "covered person" and substituted the following definition: "(A) means any person or entity defined as a member of the press under, or engaged in conduct covered by, the Free Press Clause of the First Amendment to the Constitution of the United States, as interpreted by the courts of the United States;

6. Recent Judicial Action

The issue of reporters being called to testify in criminal cases continued. As a recent example, a few weeks ago, the Federal Evidence Blog noted United States v. Sterling, _ F.3d _ (4th Cir. July 19, 2013) (No. 11–5028), one of the more recent controversies about the government's recognition of any so-called First Amendment media privileges. See Continued Controversy Over Reporter's Privilege Highlighted In Fourth Circuit Opinion, August 5, 2013. The article assessed a recent divided Fourth Circuit opinion that reflects some of the basic disagreement in the courts on whether a federal reporter's privilege exists as well as its scope if it does exist. The Fourth Circuit concluded that the First Amendment does not provide a basis to recognize a reporter's privilege. The circuit also distinguished application of any privilege in a civil versus criminal contest. The court suggested that either the Supreme Court will have to revisit its precedent or Congress will have to enact legislation in order to recognize a federal reporter's privilege.

After debate on reporter shield legislation had stalled the past few years, largely in the Senate, it now appears that there is renewed focus on this issue, particularly following recent events and cases concerning the issuance of legal process on reporter's earlier this year. Time will tell whether the Senate and House of Representatives will both agree on legislation which can be sent to the White House.

______________________________

Subscribe Now To The Federal Evidence Review

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

subscribe today button

Federal Rules of Evidence
PDF