Proposed Federal Shield Laws Emerge from Leak Probes

Article excerpt

LEGAL CORNER

It is no secret that reporters across the United States have recently been threatened with or actually served jail sentences (or, in one egregious instance, house arrest) for refusing to reveal confidential sources. Reflecting both the seriousness of the problem and a willingness of media constituencies with disparate interests to unite against a common threat, two measures seeking to create a federal shield law have recently been introduced in Congress.

Whatever the likelihood that either bill will be enacted - and barring a regime change, prospects are uncertain - the apparent failure of the courts to reign in prosecutors has at least now triggered a political response. The absence of a national standard that protects journalists, according to U.S. Rep. Rick Boucher, a co-sponsor of the House bill, is degrading the core protections provided to the news media under the First Amendment.

Both of the proposed federal shield laws would create an absolute privilege for disclosure of information about confidential sources and a qualified privilege for disclosure of related newsgathering materials.

Free Flow of Information Act of 2005

Introducing the bill in the U.S. House on Feb. 2 (the same day that President Bush delivered his 2005 State of the Union address), co-sponsor Mike Spence told his colleagues that the legislation "will provide reporters with protection from being compelled to disclose sources of information in any federal, criminal or civil case, without meeting strict criteria."

Congressman Boucher explained that "[reporters rely on the ability to assure confidentiality to sources in order to deliver news to the public, and the ability of news reporters to assure confidentiality to sources is fundamental to their ability to deliver news on highly contentious matters of broad public interest."

The proposed shield law, which is favored by many press lawyers (who had a hand in its drafting), closely follows existing Justice Department guidelines for issuing subpoenas to those involved in newsgathering activities. Known as the DOJ Policy With Regard to the Issuance of Subpoenas to the News Media, 28 C.F.R. § 50.10, those guidelines were adopted during the early 1970s in the aftermath of the Watergate scandal. For decades they have provided a largely effective mechanism for avoiding unnecessary or overzealous prosecutions. Because the DOJ policy was just that - more of a guideline than a rule, as Captain Jack Sparrow in "Pirates of the Caribbean" might put it - they have been subject to shifting emphasis in the post-9/11 era between the public's need for information and the ostensibly fair administration of justice. In the hope of restoring greater equilibrium to that process, the Free Flow of Information Act seeks to make the guidelines mandatory.

Free Speech Protection Act of 2004

Three weeks after the re-election of Bush, and as the annus horribilis for journalists drew to the end, Sen. …