By Donald R. Winslow
© 2009 News Photographer magazine
WASHINGTON, DC (February 17, 2009) – Last week a federal shield law for journalists that failed to pass in recent years was reintroduced in the House of Representatives, and now a similar measure has been reintroduced in the Senate.
The "Free Flow of Information Act" (S 448) has been introduced by Senators Arlen Specter (R-PA), Charles Schumer (D-NY), Richard Lugar (R-IN), and Lindsey Graham (R-SC).
Specter is the ranking member of the Senate Judiciary Committee. An identical bill passed the Senate Judiciary Committee by a strong bipartisan vote of 15 to 4 in October 2007.
“This legislation is very important to maintain the flow of information to the American people from the newspapers, radio and television stations,” Specter said. “It is necessary because we have seen in recent times a flurry of subpoenas being issued to reporters to disclose their confidential sources, and a reporter’s source of information really depends upon their being able to fulfill a commitment of confidentiality.”
“A truly free press is the lifeblood of our democracy. This compromise bill takes a reasonable and balanced approach to keeping us free and safe,” Schumer said. “We have worked closely together to craft a careful bill that protects both the freedom of the press and the safety of our citizens. In a free and democratic country, we should be able to do both – and this bill does.”
“This legislation confirms America’s Constitutional commitment to press freedom and advances our foreign policy initiatives to promote and protect democracy,” Lugar said. “We must lead by example and the role of the media as a conduit between government and the citizens it serves cannot be devalued.”
In the House, a shield bill similar to the current Senate measure was introduced on February 11. The House version (HR 985) is identical to the one the House passed last year during the 110th Congress by the extraordinary vote of 398 to 21.
The National Press Photographers Association is part of a broad media coalition that has been calling for Congress to pass a federal shield law for journalists since 2007. On its own, NPPA has been advocating for a federal shield law since March 2005.
NPPA first called for a national shield law when New York Times reporter Judith Miller was sentenced to four months in jail for refusing to reveal her confidential sources.
The call was renewed in March 2008 after a federal judge ordered former USA Today reporter Toni Locy to pay unprecedented personal fines for refusing to reveal her sources in a civil suit, fines so steep they could have rapidly driven the reporter-turned-journalism professor to bankruptcy.
Today NPPA's leadership is again asking members to contact their Senators and Representatives and to voice their support for these measures. (See the bottom of story for more information.)
"NPPA is gratified to see the reintroduction by the Senate of the Free Flow of Information Act. This bill represents critically needed federal protection that will allow the media to robustly report on crucial issues facing our nation," NPPA president Bob Carey said today.
"Looking back on the jailing of freelance photojournalist Josh Wolf for 226 days in 2007 for his refusal to turn over his raw video of an incident involving the San Francisco police, S 448 is long overdue in providing qualified protection to both visual and print journalists."
The shield law in the House is sponsored this year by Representatives Rick Boucher (D-VA), Mike Pence (R-IN), John Conyers (D-MI), and Bob Goodlatte (R-VA). A similar bill will be introduced soon in the Senate. The House measure today has 38 original co-sponsors.
At the federal level, there is no uniform set of standards to govern when testimony and documents can be sought from reporters. The media coalition and the bills' sponsors feel that federal standards are needed to provide uniformity and predictability in light of conflicting federal court opinions.
At the state level, 49 states and the District of Columbia provide some legal protection for journalists and their sources. In June 2008, the Attorneys General from 42 states warned that the lack of federal standards was “producing inconsistency and uncertainty for reporters and the confidential sources” and undermining state shield laws.
Early introduction of the legislation in this year's session has encouraged the media coalition members that maybe this time the shield law will pass if Congress takes swift action.
Regarding the House bill, Rep. Boucher said, "Often the best source of information about public corruption or misdeeds in a large corporation or charity is a person on the inside of the organization who would like to bring the facts to public light, but that person has a lot to lose and to avoid punishment at the hands of superiors will only divulge the information to a reporter if promised confidentiality. If confidentiality cannot be assured, the public may never learn of the wrong doing and never have an opportunity to take corrective action."
The media coalition that's calling for a federal shield law says that the legislation is in response to a disturbing trend. Since 2001, five journalists have been sentenced or served time in jail for refusing to reveal their confidential sources in federal court. Two reporters were sentenced to 18 months in prison and one reporter faced up to $5,000 a day in fines. A 2006 study estimated that in that year alone, 67 federal subpoenas sought confidential material from reporters, with 41 of those subpoenas seeking the name of a confidential source.
David Ashenfelter, a Pulitzer Prize-winning Detroit Free Press reporter, is currently facing possible jail time and fines for refusing to disclose his confidential sources in response to a subpoena issued by a former U.S. attorney, who filed a civil lawsuit against the Justice Department after he was investigated for prosecutorial misconduct in a high-profile terrorism trial.
Last year the Senate measure was stalled by Republicans who a 51-43 vote failed to move the legislation forward. The bill needed at least 60 votes to proceed, and it got stuck when Senate Republicans refused to debate the law until the body addressed a bill that provided more domestic oil and gas production.
When it failed in 2007, supporters hoped the effort would have a better chance after the 2008 presidential elections because while both the Senate and the House supported a federal shield law for reporters, the Bush administration said they opposed it and had threatened to veto it.
Aggressive prosecutors have learned how to sometimes do an "end run" around the existing state shield laws by bringing a case to bar in federal courts. One such example was the case against online journalist and blogger Wolf in 2007, NPPA's general legal counsel Mickey H. Osterreicher said.
"A freelance photographer in California, Wolf spent 226 days in prison 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 the state's protections by bringing the case in federal court where there was no such protection," Osterreicher said.
Find out who your elected Representatives and Senators are here and write to them with your support.
