New Legislative Path For A Federal Media Shield Law?

Last week, the House of Representatives approved an amendment to the 2015 appropriations bill to provide for a basic media shield law. The amendment was H. Amdt. 763, proposed by Representative Alan Grayson (D-Florida). The amendment prohibits the federal government from using funds to force journalists to testify about certain confidential information or sources. The vote for the amendment was 225 to 183 (Roll no. 263) (05/30/2014).

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., Senate Judiciary Committee Reports "Free Flow Of Information" Act - Little Prospect For Passage This Year; Federal Media Shield Law Headed To Senate Floor?. In our assessment of promising evidence issues for 2014, we wondered whether the quest for a reporter's shield law will finally be achieved. Since our assessment of the issue in January, we have had little to report on development of the media shield issue. An action by the House of Representatives late Friday, in passing H.R. 4660 with a reporter shield provision at Section 561, may signal time for a reassessment.

The Proposal

Unlike previous attempts to secure a media shield law, the proposal that passed last Friday was introduced with little fanfare and little notice. The measure was introduced on Thursday, May 29, as an amendment to the appropriations bill, H.R. 4660, the "Commerce, Justice, Science, and Related Agencies Appropriations Act." Consistent with the budgetary purposes of the legislation, Section 561 of the Act embodies the Grayson amendment to prohibit the government from using funds to force journalists to testify about information or sources. The amendment reads in its entirety:

SEC. 561. None of the funds made available by this Act may be used to compel a journalist or reporter to testify about information or sources that the journalist or reporter states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential.

Action In The House

In introducing the amendment, Representative Grayson noted the absence of a federal media shield law whereas such a law is "already in place in 49 States." According to Grayson, the amendment was "designed to protect a reporter’s privilege or the right of news reporters to refuse to testify as to information and sources of information obtained during a news gathering and dissemination process. In short, a reporter should not be forced to reveal his or her source."

Representative Grayson also addressed the precipitous way in which the amendment arose. He commented that such a media shield measure was "something that should have been handled perhaps years, if not decades ago. It falls upon us tonight, at this late hour, to try to handle it ourselves." Doing so was necessary because "[t]here have already been hearings. There has been plenty of draft legislation. It is hard enough to get anything voted on around here. It is time to vote on this." While the amendment had its limitations, its passage was needed he later noted because “[t]he reporters in this country have waited long enough. It is time to be fair and show fealty to the First Amendment and to pass this amendment tonight.”

Not A Close Vote

Debate on the proposed amendment was limited. In objecting to the measure, Representative Frank Wolf (R-Va.), the chair of the House Commerce-Justice-Science (CJS) Appropriations subcommittee, which reported the bill, opined that a media shield was not the type of thing to put into an appropriations bill. "This is not something to put on an appropriation bill at 10:35 at night," he commented, explaining that "I listened to the gentleman [Representative Grayson], and a lot of what he said, I seem to agree with, but you have to really look at this and have hearings, and for those reasons, I urge a 'no' vote." Echoing this sentiment was Representative Bob Goodlatte (R-Va.), the House Judiciary Committee Chairman, who explained that he feared the amendment was not "carefully vetted" and that the simple language could create complicated "implications." "We will continue to work on shield law legislation in the House Judiciary Committee," he explained "which has passed out forms of shield law in the past, and we will continue to work on it. I must oppose this amendment in these circumstances. I don't think this is the right place to legislate something as complicated as this issue."

After debate, the question was put to the house about adopting the amendment to the appropriations bill. The Record indicates that "the noes prevailed by voice vote." However, because Grayson asked for a recorded vote on the amendment, that recorded vote reflected that the amendment passed by a vote of 225 yes, 183 no and 23 not voting. In an account of the vote provided by Representative Grayson's office it noted that "Audible cheers erupted upon passage of the amendment."

Breaking The Gridlock

In announcing the amendment's passage on the political web site DailyKos, Grayson noted on Saturday, May 31 that "[t]his morning, at 12:40 am, the U.S. House of Representatives did something that has eluded it for 42 years: it passed a law to prevent journalists from being imprisoned for protecting their sources. I took this concept, known as a 'shield law,' boiled it down to 52 words, and put it up for a surprise vote. And won...."

He had presented the issue of a media shield law as one in which there was broad agreement but somehow it was caught in Washington gridlock: "absent statutory authority, federal courts have been reluctant to follow the consensus established by the States that protects reporters and their sources. For over four decades, Congress has failed to fill this gap. Support for such a law is bipartisan and bicameral." Although leaders of both parties had "introduced a federal shield law that has drawn the approval of the White House, called the 'Free Flow of Information Act,'" Representative Grayson noted: "It is hard enough to get anything voted on around here" and ultimately concluded that the "time to vote on this” had finally come.

Implications

Of course there is still quite a way to go before the Grayson reporter shield amendment becomes law. First, the appropriations bill in which the amendment is contained must receive the assent of the Senate and the signature of the President. In addition, the amendment only withholds funding from the government that is used for seeking certain information from reporters. Withholding funding for an activity does not necessarily negate the government's authority to obtain information from reporters otherwise. This also raises the question of whether the media shield that is part of the 2015 appropriation would normally expire with the end of that fiscal year.

Even if the measure were to become law, it may still leaves a fair number of unanswered questions that have stood in the way of media shield proposals in the past, including:

  • Enforcement: The amendment prohibits the use of government funds. It does not prevent the government from making demands for information from the reporter or even otherwise requiring the information as a consequence of achieving something the government is otherwise authorized to do. Nor is it clear how the provision would affect currently on-going litigation involving the disclosure of reporter confidential information.
  • Coverage: One sticking point for a media shield law has been defining precisely who was protected. The Amendment fails to advance this matter. For example, whether bloggers can be considered protected, or employers of reporters are covered, remains an open question.
  • Protections: The amendment only applies to funding used to "compel" a reporter's testimony "about information or sources." This does not necessarily cover obtaining the information or sources by means other than through the reporter's "testimony." It would not, for instance, prohibit the government from requiring a reporter's employer or supervisor from disclosing the desired information or sources, or prevent disclosure by a third party, such as the phone company supplying the reporter's phone service.
  • Confidential Information: The amendment applies to any source or information the reporter regards as "confidential," but supplies no standard for assessing the nature or reasonableness of such a belief.

The Federal Evidence Blog will continue to monitor this issue. In the meantime, for more information on Reporter or Media Shield Laws (and other related matters), are available here on the Federal Evidence Blog.

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