Talking Points: Federal Shield Law: Free Flow of Information Act

In early April, all three presidential candidates publicly backed Senate legislation (S. 2035) for a federal shield law to protect confidential sources and the public's right to know. Last October, the House passed similar legislation (H.R. 2102) by an overwhelming, bipartisan margin of 398 to 21, and the Senate Judiciary Committee passed S. 2035 by a 15-4 vote.

As this bipartisan track record demonstrates, support for this important legislation is not a Republican or Democrat issue. It is a critical recognition from opposite sides of the political spectrum that hauling journalists to jail or personally bankrupting them to reveal their confidential sources is not the American way.

S. 2035 is not a free pass for the press. The bill provides a qualified privilege with exceptions for national security, personal safety and law enforcement reasons. The sponsors of S. 2035 have made recent changes to the committee-passed bill in a good faith effort to address Bush Administration concerns. For example, the compromise bill:

• narrows the definition of a journalist to ensure the privilege only applies to legitimate news-gatherers;

• expressly provides that courts may consider government submissions under seal and not in public to avoid the inappropriate release of classified information in open court; and

• provides an expedited appeals process for the government or a covered person challenging a federal court's ruling on a media subpoena.

Now is the time for the Senate to act. One only needs to look at the aggressive actions taken against Toni Locy, a former USA Today journalist and now university professor, to confirm this fact.

A federal judge ordered Ms. Locy to personally pay contempt fines up to $5000 a day for refusing to reveal her confidential sources in Dr. Steven Hatfill’s Privacy Act lawsuit against the federal government. And, in an unprecedented move, the judge prohibited anyone, including her former employer or even her own family, from helping her pay the fines.

A three-judge panel stayed the fines pending Ms. Locy's appeal, but all around the nation, this ruling sent a chilling message to journalists, whistleblowers and other confidential sources.

The Locy case reflects a growing trend of reporters being subpoenaed or threatened for their confidential sources by civil litigants and federal prosecutors. And it is this trend that threatens investigative journalism and underlines the need for a federal shield law.

Forty-nine states and the District of Columbia recognize a reporter's privilege through laws or judicial decisions, but no uniform federal standard exists to govern when confidential source information can be sought from reporters.

Groundbreaking stories, such as conditions at Walter Reed Medical Center, the Enron scandal and steroid abuse in Major League Baseball, would not have been known to the public or to the Congress without confidential sources.

Please vote "YES" on S. 2035 "the Federal Shield Bill" when it comes up in the Senate and vote "NO" on any amendments that would weaken the well-reasoned protections in bill. I look forward to hearing back from you on your position on the bill.

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