US House passes federal media shield law favoring reporters

21 October, 2007:

Ensuring that reporters do not face federal prosecution for refusing to identify confidential sources except in special circumstances, the United States House of Representatives has approved what would be the first federal media shield law.

The law – Free Flow of Information Act of 2007 – was passed despite strong opposition from President George W Bush’s administration.

Supporting the media shield law, House Judiciary Committee chairman John Conyers (Democrat-Michigan) declared, “If we keep going after journalists, they will be afraid to report the important stories.” He cited media stories on topics including professional athletes using steroids, hospitals dumping poor patients, and Iraq war abuses.

Representative Mike Pence (Republican-Indiana), who co-sponsored the legislation, said that, without the free flow of information, the public would be ill-prepared to make informed choices.

The legislation, passed in a 398-to-21 vote after a last-minute change, is a softened version of the broad shield law that was first proposed.

The new federal media shield law ensures that reporters – defined as people engaged in journalism for financial gain or livelihood and not working for a foreign power or terrorist group – would be protected from being forced to disclose sources in federal cases, but with some exceptions.

In cases arising from concerns about terrorist attacks, judges could order disclosure when a “preponderance” of evidence means that it is more likely
that disclosure would “prevent an act of terrorism against … or other significant and specified harm to national security.”

The new law also lays down that reporters also could be forced to testify when they personally witness criminal conduct, including when they obtain
classified information illegally, but only if the government can prove that information was properly classified and that the disclosure has harmed or will harm national security.

The protection is more limited when reporters get stolen business trade secrets or personal medical information. The legislation makes it clear that the exemption applies to prosecution, not necessarily to civil damage complaints.

The Bush administration and some Republicans argued that the media shield law is not at all needed and that it goes too far.

Representative Lamar Smith (Republican-Texas) warned that the Bill would impose severe limits on the Department of Justice and would likely prompt a presidential veto if approved by the Senate.

In the opinion of Lamar Smith, “no one should be above the law, not even the Press” and pointed to a statement of administration policy warning that
the legislation “could severely frustrate – and in some cases completely eviscerate – investigation of terrorism and national security issues.”

Over 50 media companies and organizations have praised the passage of the Free Flow of Information Act of 2007.

At present, 33 states and the District of Columbia offer some degree of shield law protection, while an additional 16 have adopted judicial decisions
supporting the safeguarding of confidential sources.

At the federal level, however, there has been till now no shield law protection, as evidenced by a wave of federal subpoenas that have threatened to – and in some cases actually have – put reporters behind bars.