by Matthew L. Schafer
On Tuesday Kevin Smith, president of the Society of Professional Journalists, wrote an open editorial advocating for the passage of a federal shield law that is currently sitting in the Senate. The House version of the bill, entitled the “Free Flow of Information Act of 2009,” passed in November of last year. In the editorial, Smith said the time has come to pass the Senate version of the bill, which if passed would be one of the broadest federal protections for reporters ever signed into law.
“As [the bill] awaits permission from key senate leadership to come to the floor for a full vote, all senators, representing the interests of American citizens, need to hear from their constituents,” Smith wrote. “Citizens who value the importance of transparency in governance and think the American press needs to continue to serve as the watchdog on the federal government should tell their senators to support this measure.”
Shield laws have become increasingly controversial in the past as federal and state governmental organizations have increased the number of subpoenas against journalists and bloggers seeking the identification of confidential sources. Most famously perhaps is a 2005 case involving the leaking of Valerie Plame’s identity as an agent of the CIA.
In the case, Judith Miller, then of the New York Times, and Matthew Cooper of Time magazine were ordered by a judge to reveal their sources. While Cooper eventually did testify, Miller refused to reveal her sources and was held in contempt of court. She served 85 days in prison, refusing to testify until her source released her from her promises of confidentiality. At the time, Joel Roberts of CBS News wrote simply, it was a case of “punishing good journalists.”
“So it’s fairly clear now, if it wasn’t before, that until the Supreme Court recognizes a constitutional privilege protecting journalists from testifying in grand jury proceedings – or until Congress passes a law that similarly protects reporters – journalists seeking such protection in federal court are going to run into a wall,” Roberts wrote at the time.
Simply put, while the application of shield laws is a messy subject, in many cases they protect reporters from being held in contempt of court for refusing to reveal their sources.
In April of this year, the Department of Justice renewed a subpoena of New York Times reporter James Risen, which was originally issued under the Bush Administration. The Department of Justice is seeking Risen’s sources for his 2006 book entitled “State of War.” In his book, Risen uncovers a failed attempt by the United States to disrupt Iran’s nuclear program.
“He intends to honor his commitment of confidentiality to his source or sources,” Joel Kurtzberg, Risen’s lawyer, told the New York Times in April. “We intend to fight this subpoena.”
In a letter sent to Senator Harry Reid [D-NV] last year, a group of media organizations wrote that over 40 reporters or media organizations had been subpoenaed for information in the past several years. Because of the numerous examples of attempts to compel the disclosure of confidential sources, reporters are asking for increased protections under the law. Shield laws are that protection they argue. Simply put, while the application of shield laws is a messy subject, in many cases they protect reporters from being held in contempt of court for refusing to reveal their sources.
Currently, 36 states have shield laws and no federal shield law exists. While shield laws vary from state to state, they are based on the presumption that democracy needs investigative journalism, and that reporters, in some instances, need to be able to offer sources confidentiality in order to gather information.
California’s shield law is currently in the spotlight, as blogger/journalist Jason Chen of the online news site Gizmodo recently found himself subject to a search warrant, where his laptop among other things was taken by police after he bought an iPhone 4 that an Apple employee left at a bar on the night of their birthday. The California law reads in part:
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
The bill, H. R. 985, introduced by Representative Rick Boucher [D-VA] and co-sponsored by 50 representatives on both sides of the aisle, reads similarly to the California law. It reads, in part, that “in any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism.”
While the bill would provide similar protections as the California shield law, its definition of a journalist is much broader and includes anyone “who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information.” An important distinction is the exclusion of the word “employed,” thus likely extending its protections to bloggers.
Upon passage of the act, Boucher said, “[I] support this breakthrough agreement, which is a victory for the public’s right to know and for the ability of reporters to bring information on the most critical issues of the day to light.”
The bill in the Senate, S. 448, sponsored by Sen. Arlen Specter [D-PA], reads similar to the House version. It does, however, expand on the definition of a covered person. In around 400 words, the bill describes a covered person as someone who acts (in part):
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; [Someone who] regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by conducting interviews, making direct observation of events, or 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
The bill is currently stalled in the Senate after being voted out of committee in December. Remarking on the bill leaving committee, Specter said that the bill “has been a long time coming. The bill creates a fair standard to protect the public interest, journalists, the news media, bloggers, prosecutors and litigants.”
While the Society of Professional Journalists is urging the passage of the bill in the Senate, SPJ President Kevin Smith is disappointed by the inclusion of the definition of a “covered person” in the bill. In an email to Lippmann Would Roll, Smith called the definition a “difficult pill to swallow,” citing that SPJ has been fighting against defining a “journalist” in any absolute terms.
Indeed, as a result of the rise of the blogger the definition of who is a journalist continues to be a controversy among industry professionals and judges. As previously reported by Lippmann Would Roll, a New Jersey judge recently wrote in an opinion that “new media should not be confused with news media.”
“This was presented to us as a take-it only proposition,” Smith wrote, in reference to the bill. “A lot of discussion took place and the bottom line is simple for many involved — right now we have no protection at the federal level. This bill will protect the vast majority of journalists working in our country.”
In his recent editorial Smith writes that the bill is ready for a vote on the floor. It just needs the approval of Senate leaders in order to come to the floor for a vote before the August recess. He urged citizens to contact their representatives and advocate on behalf of the bill.
Smith signed off his editorial writing, “Only when there is a free flow of information from the government to its people can we truly appreciate the beauty and power of a democracy.”