By Mickey H. Osterreicher
NPPA’s general legal counsel
BUFFALO, NY (July 13, 2008) – Last week Senate Majority Leader Harry Reid (D-NV) announced on the Senate floor that floor time will be given in July for consideration of S. 2035, “The Free Flow of Information Act.” The Act is a federal shield law drafted to protect confidential sources and the public’s right to know. Journalists and press freedoms groups feel that action on this important legislation is long overdue, and that protection of the public’s right to know is not just a Republican issue or a Democratic issue. The Act has strong bipartisan support.
"The Free Flow of Information Act is perhaps one of the most important pieces of free press legislation to come up for journalists and American citizens in several years," National Press Photographers Association president Bob Carey said this week.
"First Amendment rights for the press are a vital part of our country's heritage. All too often there has been a move to try to reduce the concept of a free press. The importance of being able to protect sources, photographs and video can not be overstated."
Last October, the House of Representatives passed a similar bill (H.R. 2102) by an overwhelming vote of 398 to 21. At around the same time, the Senate Judiciary Committee passed S. 2035 by a vote of 15-4. The Senate bill has been endorsed by both of the presumptive presidential nominees, Senators John McCain and Barack Obama.
"I want to encourage all members of the NPPA to write their Senators and express the importance of passing this bill," Carey said. "A free press is vital to democracy and as journalists, we must have the responsibility to stand up for the public's right to information."
For more than three years NPPA has called for the passage of a federal shield law to protect journalists nationally.
The District of Columbia and 49 states have recognized a reporter's privilege either through statute or judicial decisions. These laws have worked well for years. In federal courts, however, there is no uniform set of standards to govern when testimony can be sought from reporters. In late June, the Attorneys General from 42 states urged the Senate to act on the legislation. These Attorneys General stated that the lack of a federal standard is “producing inconsistency and uncertainty for reporters and the confidential sources upon whom they rely.”
This legislation responds to a disturbing trend. Reporters and photographers are now becoming the first stop, rather than the last resort, for civil litigants and prosecutors attempting to obtain the identity of confidential sources. Over the last four years, more than 40 reporters have been subpoenaed or questioned about their confidential sources, their notes, and their work product over the last few years in criminal and civil cases in federal court. Two reporters were sentenced to jail or home confinement, and one reporter – Toni Locy, formerly of USA Today – was held in contempt and faced fines up to $5,000 a day for refusing to reveal her confidential sources.
Last year Joshua Wolf, a freelance photographer in California, spent 226 days in prison (longer than any other journalist in U.S. history) for his refusal to turn over his raw video of an incident involving the San Francisco police. He would have normally been protected by California’s strong shield law until prosecutors did an end-run around those protections by bringing the case in federal court.
The strong bipartisan support illustrates that hauling journalists to jail or bankrupting them to force them to reveal their confidential sources is not the American way. Nor does such a practice support our government’s efforts to promote democracy and the freedom of the press in other parts of the world. But S. 2035 is not a free pass for the press. The bill establishes a privilege that would be qualified, not absolute.
The bill provides exceptions that requires reporters to provide information to prevent acts of terrorism or other significant harm to national security; to furnish eyewitness observations of a crime; and to provide information needed to prevent a death, kidnapping, or substantial bodily harm. These well-balanced and reasonable exceptions establish uniform ground rules for when a reporter can be compelled to testify about confidential sources and when a reporter can receive protection.
Since October, the bill’s sponsors have made changes to the committee-passed bill in a good faith effort to address additional Bush Administration concerns on national security. The bill is not about protecting reporters; it’s about preserving the public’s right to know.
"A shield law is particularly important for photographers because we have to be present at the scene to get images. Our ability to offer confidentiality is critical to our ability to gain access and do our jobs," NPPA past president Alicia Wagner Calzada said today.
"We simply cannot get what we need from an anonymous phone call or confidential memo. Our ability to make a commitment of confidentiality is essential. Because photography creates such good evidence, we are also in the position to be a frequent target of subpoenas.
"Photojournalists must realize that the increased trend of law enforcement relying on journalists to gather evidence is a threat to their safety and their ability to report in the first place," she said. "We need only look to the case of Joshua Wolf to see how law enforcement uses the lack of a federal shield law to get around state shield laws."
If sources, including government and private sector whistleblowers, are uncertain whether a reporter will be compelled to reveal their names, they will not come forward, and the public dialogue on important issues will diminish. Without confidential sources, groundbreaking stories – such as the 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.
NPPA is part of a coalition of more than 60 news organizations who have worked diligently for passage of this bill. By enacting a federal shield law, the Congress can ensure that all parties – journalists, sources, prosecutors, civil litigants and courts alike – can rely on consistent and well-articulated standards of procedure. Even more important, the public will be greatly benefited by a shield law, since it is often through confidential sources that the public learns about corporate abuses and government wrongdoing. This free flow of information is essential in a democratic society where consent of the governed is inextricably linked to a vibrant and informed citizenry.
NPPA’s leadership believes that it is critical that the organization’s members contact their Senators and urge them to vote “yes” on cloture (the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster) and “yes” on final passage when a revised version of S. 2035 is brought to the Senate floor. It is no less important that the Senate not add any additional amendments that would weaken the well-reasoned protections in this bill.
Osterreicher is the general counsel for NPPA and a member of the New York State Bar Association Media Law Committee.
