The Journalism Shield Law: How We Got Here

Last week, the Senate Judiciary Committee began debate on the Free Flow of Information Act — otherwise known as the Shield Law — but discussions ground to a halt when lawmakers couldn’t reach a consensus on who counts as a journalist.

The bill was introduced in the wake of the controversy over the Justice Department’s seizure of journalists’ phone records. In its current state, the bill could do more harm than good. It contains national security loopholes that would leave many journalists reporting on government activities unprotected. It also defines journalists so narrowly that it excludes bloggers, citizen reporters and even some freelancers.

At their most basic, shield laws protect journalists from being compelled to reveal the names of confidential sources. Beyond that, they may cover any pertinent information related to the production of a story, such as notes, outtakes, drafts, or audio and video recordings. These protections — also known as reporters’ privilege — are essential to safeguarding press freedom.

We're living in an era where more people than ever are committing acts of journalism. Our laws should encourage and protect journalism in all its forms — not create arbitrary definitions that exclude people on the front lines of reporting.

We’ve Been Down This Road Before

In 1972, the Supreme Court in Branzburg v. Hayes held — in a 5–4 decision — that the First Amendment doesn’t protect reporters from having to testify before a grand jury on criminal matters or on conduct witnessed in the course of their reporting.

And just a few weeks ago, the Fourth Circuit Court of Appeals went one step further than the Supreme Court — concluding that the First Amendment does not protect New York Times journalist James Risen from being forced to testify against a source who provided unauthorized information to him. In other words, journalists can now be forced to identify their sources in federal criminal trials in the Fourth Circuit — which houses many of our national security agencies, including the CIA and the Pentagon. (This case will likely be appealed.)

The Supreme Court closed the door on the First Amendment as an avenue for protecting journalists from testifying and disclosing their sources — but it left the door open for states and Congress to establish their own protections for reporters. All states except Wyoming have shield laws or protections derived from court rulings.

While approaches vary from state to state, most states recognize a qualified privilege under the First Amendment and/or their state constitutions. In many cases, these shield laws use a balancing test mapped out in Justice Potter Stewart’s dissenting opinion in the 1972 Branzburg case. Justice Stewart said a journalist should be compelled to testify if the information is relevant to the case at hand, if the information can’t be acquired through alternative means and if the public has a compelling interest in the requested information.

There have been numerous efforts to pass a federal shield law. The Free Flow of Information Act has been introduced in various forms in Congress since 2005, usually failing to make it out of committee. It came closest to passage in the 112th Congress: A version passed the House, but a Senate version failed to pass after the Obama administration had a sudden change of heart and opposed the bill. (Yes, he was against it before he was for it, but he was also for it before he was against it, before he was for it — oh, never mind).

State protections for reporters vary in scope and application. While most states recognize qualified privilege using the balancing test described above, a few states (including Alabama, Arizona and California) offer absolute privilege, which generally protects journalists from having to disclose sources or other related information. Some states limit coverage to “professional reporters,” while others protect freelancers, book authors, electronic publishers and educators.

State protections also vary depending on whether a court is seeking information for a criminal or civil matter. For example, absolute privilege is usually limited to civil matters. In light of the inconsistency in how shield laws are applied, we should welcome the opportunity to establish a stronger, more forward-looking federal law. But so far that’s not what we’re getting.

The Proposed Federal Shield Law

The Free Flow of Information Act set to be debated this week in the Senate enshrines some of the positive protections from the recently revised Justice Department guidelines. Under the proposed legislation, journalists can be compelled to identify sources or related information under the following circumstances:

  1. The party seeking disclosure has exhausted all reasonable alternative sources of the information;
  2. The requested information is essential to resolving the matter;
  3. Disclosure of the requested information would not be contrary to the public interest; and
  4. In criminal cases, if the requesting party is the federal government, the government must show that there are reasonable grounds to believe that a crime has occurred.

In addition, there are exemptions requiring disclosure in instances where such information could potentially prevent death, kidnapping, substantial bodily harm, crimes against minors or the destruction of essential infrastructure.

The broadest exemption, however, is for cases involving national security. Cooperation can be compelled if the federal government believes the information can be used to stop or mitigate an act of terrorism.

Most problematically, disclosure can be compelled when the information in question would assist the federal government in stopping or mitigating “other acts that are reasonably likely to cause significant and articulable harm to national security.” This language could be construed to apply to any number of circumstances, so long as the government argues there is some threat to the limitless concept of “national security.”

Another shortfall lies in how the Act limits the scope of who qualifies as a covered person. Many policymakers want to limit protections to those who make a significant amount of their income and livelihood from journalism. But the federal shield law should cover anyone who provides journalistic services, even if a person is not professionally or regularly employed as a journalist.

Not All Shields Are Created Equal

What the discussions in D.C. overlook is the range of people who are creators and collaborators in journalism. We need a real debate about press freedom — but the closed-door conversations in Washington aren’t it.

Given that advocates of a federal shield law have been fighting for protections for more than a decade, it’s tempting to take whatever we can get. Negotiation is part of policymaking, but there are some things we shouldn’t compromise on.

Journalism is an act and a service, not a person or institution. We should protect that act because it is not only a public good, but one that’s key to how our democracy functions. Congress is still catching up to this idea and it will take a loud chorus of voices for a better federal shield law to move forward.

Free Press President and CEO Craig Aaron talked about the shield law in a recent appearance on The Big Picture:

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