By Kathleen Kirby, Wiley Rein LLP
As RTDNA Executive Director Mike Cavender stated last week, “we need a federal shield law now!” But the “Free Flow of Information Act” (H.R. 1962 / S. 987), a federal shield bill that would protect the public’s right to know by protecting the identities of journalists’ confidential sources, stands no chance of passage without your help. The most important action RTDNA members can take is to contact their Congressional delegations over the Memorial Day recess, when members are in their home districts, to urge Members to co-sponsor the Chuck Schumer (D-NY) shield bill in the Senate (S. 987) and the Ted Poe (R-TX) bill in the House (H.R. 1962).
Check out our Federal Shield Law talking points and contact your U.S. Senators, urging them to support the Senate bill.
RTDNA is working with the NAA and a coalition of more than 70 media groups, as well as with interested members of Congress and the executive branch, to see if a federal shield bill can finally be passed in the wake of the AP records scandal. The events that have come to light as a result demonstrate that clear, uniform standards – administered by an impartial judge – are needed for the compelled disclosure of confidential source information so that overly broad requests do not chill the flow of information to the public on important government issues. Time is of the essence if we are to succeed in moving a bill over the next few weeks. The Capitol Switchboard number is (202) 224-3121. The coalition has provided the following background to assist with your outreach:
The Free Flow of Information Act does not give a free pass to the press or their sources. The bill establishes a privilege that would be qualified, not absolute. The legislation sets forth reasonable and well-balanced ground rules for when a journalist can be compelled to testify about confidential sources, including where information is needed to prevent an act of terrorism or other significant harm to national security. Federal standards are desperately needed to provide uniformity in light of conflicting federal court opinions.
The shield law would have benefits far beyond national security cases such as the AP. The vast majority of subpoenas are issued in civil cases and in criminal cases that do not involve classified information. Even when journalists receive an opportunity to challenge a subpoena in federal court in such cases, they have little recourse without a shield law. Unlike most state legislatures, Congress provides no protection for journalists’ confidential sources. Since 2001, five journalists have been sentenced or jailed for refusing to reveal their confidential sources in federal court. Two of these journalists were sentenced to 18 months in prison and an additional journalist faced up to $5,000 a day in fines, which could not be reimbursed by the employer, family or friends. From 2007 to 2009, the most recent year for which numbers are available, the Justice Department’s Criminal Division issued 19 subpoenas to the media, though some studies indicate the number is far higher.
A shield law would not just protect journalists – it preserves the public’s right to know. If potential sources, including government whistleblowers, fear that journalists will be forced to reveal their identities, these sources will not come forward, and the public will lose the ability to hold the government accountable.
Protection of the public’s right to know is not a Democrat or Republican issue. The Free Flow of Information Act has enjoyed strong bipartisan support. In 2009, the House of Representatives passed a shield law by voice vote. On December 10, 2009 the Senate Judiciary Committee passed a shield law by a 14-5 vote. The recent surveillance of AP reporters underscores the need for a shield law and will garner more support.
The legislation’s careful balancing of interests has drawn support from law enforcement officials. In May 2013, Attorney General Eric Holder reaffirmed the administration’s support for a federal shield law. In June 2008, the Attorneys General from 41 states warned that the lack of a federal shield law is “producing inconsistency and uncertainty” for journalists and sources and “frustrates the purposes” of state shield laws. Forty-nine states and the District of Columbia provide some legal protection for journalists and their sources. Former Solicitor General Theodore Olson wrote in October 2007 that shield legislation is “long overdue, and it should be enacted.”
For centuries, journalists have relied on confidential sources to produce groundbreaking investigative reporting. That ability is in jeopardy today more than ever before. Only with a strong, collective effort will we be able to persuade lawmakers that now is the time to enact a federal shield law.