Federal shield law efforts

Current action in Congress

updated through 9/12/2013

Sen. Charles E. Schumer (D-N.Y.) introduced S.987, the “Free Flow of Information Act of 2013,” on May 16, 2013. There are 19 co-sponsors. The Judiciary Committee passed the bill on September 12, 2013.
Rep. Ted Poe (R-Tex.) introduced H.R. 1962, the “Free Flow of Information Act of 2013,” on May 14, 2013. The bill was referred to the House Committee on the Judiciary. There are 47 co-sponsors signed onto the bill.

News links:

7/30/2013: Holder expresses support for federal shield bill amendments adding judicial role to notice process

7/19/2013: Fourth Circuit rules reporter not protected from being compelled to testify in CIA leaks case

7/12/2013: Attorney General Holder's report to President adopts stronger protection for news media

5/22/2013: Justice search warrant relied on "probable cause" of criminal conduct by Fox News journalist

5/21/2013: Statement of Reporters Committee's Bruce Brown on Justice Department investigations of journalists

5/15/2013: White House, lawmakers push for federal reporter shield law in wake of AP phone records seizure

5/14/2013: Justice Department defends decisions in secret seizure of AP phone records as criticism mounts

2009 action in Congress:

The Senate shield bill, S. 448, was passed by the Judiciary Committee on Dec. 10, 2009. It never was brought to the Senate floor, however.
The House of Representatives passed H.R. 985, the "Free Flow of Information Act of 2009," on March 31, 2009 by a voice vote.

Summary of the legislation:

The House of Representatives passed the Free Flow of Information Act on March 31, 2009 (H.R. 985). The bill was passed by a voice vote under a suspension of the rules, a typical procedural used to pass non-contrversial bills. The Senate was considering another version of the law (S. 448), which passed the Judiciary Committee in December, but was kept off the Senate floor by the debates over health care and other issues.

Both President Barack Obama and Attorney General Eric Holder have previously expressed support for a federal shield law. White House concerns about the bill initially threatened to derail progress, but a compromise was reached in late October. In a very unusual move, the Obama Administration publicly endorsed the bill while it was still under consideration by the Judiciary Committee; the administration typically only issues such statements about bills that have made it to the chamber floor.

The House and Senate versions of the bill are different. Although both provide a qualified privilege to reporters and both would apply in both criminal and civil contexts, the two proposals vary greatly on what information would fall under its purview and who could call on the shield for protections.

The Senate version of the bill protects only the identity of confidential sources and records, communications data, documents or information obtained upon a promise of confidentiality. The House bill creates a much more expansive scheme, extending protection not only to confidential sources and information, but to any documents or information obtained during the newsgathering process.

The Senate bill, after many amendments, currently takes a broad stance in defining who would fall under the protected class. The measure covers any journalist who engages in "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." (However, several Democratic senators have expressed an interest in narrowing the class of covered persons before the bill is brought to the Senate floor.) Meanwhile, the House bill takes a more restrictive approach. Under its version, journalists can only claim protection from federal subpoenas if their work is done "for a substantial portion of the person's livelihood or for substantial financial gain."

Both versions of the bill are rife with exceptions. The House legislation provides specific exceptions where disclosure is necessary to prevent an act of terrorism or imminent death or significant bodily harm; where disclosure is necessary to identify a person who has released some categories of private business and medical information; and where the reporter witnesses criminal or tortious conduct. The proposed legislation in the Senate does not protect a reporter where the sought-after information would assist in preventing an act of terrorism or other articulable harm to the national security, and also offers exceptions where a journalist witnesses allegedly criminal or tortious conduct, and where the sought after information can prevent or mitigate death, kidnapping, or substantial bodily harm.

The Senate version also contains a public interest balancing test, where the public interest in the release of confidential source information is balanced against the interest in allowing journalists to keep it confidential. The balancing test does not apply in national security and terrorism cases. In criminal cases, the burden is on the journalist to demonstrate that the public interest in confidentiality is more important than the interest in disclosure, while in civil cases, the burden is on the subpoenaing party.

History:

S. 448 was introduced on Feb. 13, 2009.
H.R. 985 was introduced on Feb. 11, 2009.
H.R. 2102 was introduced on May 2, 2007. The Committee on Judiciary sent it to the House floor on October 10, 2007. The House of Representatives passed the bill by a recorded vote of 398 – 21 on October 16, 2007.
S. 2035 was introduced on September 10, 2007. The Committee on the Judiciary sent it to the Senate floor, with amendments, on October 22, 2007, when it was placed on the Senate Legislative Calendar under General Orders. It died in the Senate without a vote before the closure of the 110th Congress.

Bill status and tracking through Library of Congress' Thomas system:

S. 448

H.R. 985

News links:

2/19/2008: Contempt order shows need for federal shield law

3/7/2008: Senators urge vote on federal shield law

4/4/2008: Administration officials speak out against shield law

7/23/2008: Pence and Mukasey square off on Shield Bill

7/30/2008: Senate fails to end debate, move shield bill to a vote

8/25/2008: Bush advisers favor a veto of shield law

July 2008: Senate fails to end debate, move shield bill to a vote

Fall 2008: A reporters privilege in tatters