The history of shield legislation

From the Winter 2007 issue of The News Media & The Law, page 8.

September 1972: In the wake of Branzburg v. Hayes and FBI surveillance of journalists, Congress begins considering a federal shield law. At least six bills are introduced quickly, and 65 are introduced in the next year. Reps. Charles Whalen Jr. (R-Ohio) and William Moorhead (D-Pa.) propose a shield law that would apply to the news media and freelancers. It provides a qualified privilege against forced disclosure of “any information or the source of any information procured for publication or broadcast.”

1974: The American Bar Association rejects a shield law for reporters by a 157-to-122 vote. The ABA also votes against supporting any form of “newsmen’s privilege.” Opponents say reporters are putting themselves “above the law” and argue that the immunity would extend to the underground press and “college dropouts” claiming to be journalists.

January 1977: The International Executive Board of The Newspaper Guild adopts a statement on “Grand Jury Reform and Reporter Privilege” and urges Congress to adopt legislation that would help reporters resist grand jury subpoenas. The statement supports bills introduced by Reps. John Conyers (D-Mich.) and Joshua Eilberg (D-Pa.) and Sen. James Abourezk (D-S.D.) that would, among other things, limit jail terms for contempt to six months instead of 18 months; make it impossible to jail reporters a second time for refusing to answer the same questions; require that grand juries vote on news media subpoenas; and require prosecutors to present full justification for such subpoenas.

August 1978: Rep. Philip Crane (R-Ill.) introduces a bill prohibiting any federal, state or other governmental authority from issuing search warrants and subpoenas to journalists.

September 1978: After the jailing of New York Times reporter Myron Farber, Rep. Richard Ottinger (D-N.Y.) introduces a bill that would grant journalists the right to withhold identities of confidential sources and information received from those sources.

January 1979: Rep. Bill Green (R-N.Y.) introduces a proposed federal shield law that would grant an absolute privilege against disclosing “any news, or sources of any news,” even to grand juries.

January 1981: Crane reintroduces his shield bill.

July 1987: Sen. Harry Reid (D-Nev.) circulates a draft of federal shield law to media groups for comments, noting that previous efforts failed in part for lack of consensus by the media on what a federal shield law should include. Under Reid’s proposal, any court, grand jury, administrative or legislative body of the United States or a state could not require a journalist to disclose any news, the source of any news or any unpublished information. There are exceptions for defamation and criminal defense.

November 2004: Sen. Christopher Dodd (D-Conn.) introduces the Free Speech Protection Act of 2004 in the Senate, which would provide journalists with an absolute privilege from disclosing sources and a qualified privilege to withhold other information.

Feb. 2, 2005: Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) introduce the Free Flow of Information Act of 2005 in the House. The proposed legislation would provide reporters with an absolute privilege against compelled disclosure of their sources.

Feb. 9: Sen. Richard Lugar (R-Ind.) introduces an identical Free Flow of Information Act of 2005 in the Senate.

May 18, 2006: Lugar introduces the Free Flow of Information Act of 2006, which creates only a qualified privilege for confidential sources and information. The 109th Congress ends without the bill passing out of committee.