This week, the Senate Judiciary Committee will consider the Free Flow of Information Act (S.987), a media “shield law” designed to protect journalists and their sources against prying prosecutors.  We’ve been here before.  The House passed such a bill on two different occasions, and the Senate moved legislation through the Senate Judiciary Committee only to see the bill stall before a Senate floor vote.  But now, the Administration’s attempts at political damage control in the wake of revelations that the Justice Department secretly subpoenaed Associated Press phone records and searched the emails of Fox News’ James Rosen appear to have engendered bipartisan support for the legislation.  Passage of a shield law is by no means a done deal, and we’re likely to see debate over the scope of national security exceptions and how to define a “journalist” for purposes of applying the law’s protections, among other things, but extraordinary backdrop against which the House and Senate bills are being considered may finally have opened the door for enactment.

In May, the AP revealed that DOJ obtained records for 20 phone lines used by its editors and reporters, most of whom were involved in a report about a CIA-thwarted terrorist plot in Yemen. Investigators only notified the AP’s attorneys about the subpoena after the records were collected.  Shortly thereafter, reports surfaced that the Justice Department said that there was “probable cause” to consider Fox News’ James Rosen a “co-conspirator” with State Department employee Stephen Kim, who is accused of leaking secrets to Rosen. That designation allowed the department to be free from the limits on search warrants to the news media found in the Privacy Protection Act, and allowed them to search Rosen’s Gmail account.

After these stories made headlines, Attorney General Eric Holder held meetings with approximately 30 news media organizations, media industry associations, academic experts and First Amendment groups.  In July, he submitted a report to President Obama listing recommendations for revisions to the DOJ’s guidelines on subpoenas to the news media. The report strengthens protections for journalists and calls for more direct oversight by the AG when investigations of leakers involve journalists’ constitutionally protected work materials.

The report recommends reversing the Justice Department’s current policy of notifying the news media about subpoenas only if the assistant attorney general determines that the advance notice would not pose a threat to the investigation.  The report recommends that the matter be overseen by the higher ranking Attorney General with a presumption that the news media must always be given advance notice of a subpoena. Only if the AG and a committee of senior Justice Department officials determine that advance notice would pose a “clear and substantial” threat to the investigation, grave harm to national security and death or serious bodily harm can the department delay notifying the affected media organizations.

Holder’s report also recommends that the DOJ only use the so-called “suspect exception” it applied in the Rosen case if the journalist is under criminal investigation for activities “not connected to ordinary newsgathering activities.”  The report also suggests the formation of a News Media Review Committee made up of senior Justice Department officials who will advocate for the media’s First Amendment rights and advise the Attorney General and his deputy when government attorneys seek media-related records in its pursuit of leakers.  The report calls upon the intelligence community to pursue and punish its own leakers internally.  The revised guidelines are voluntary and would not prevent government overreach, nor would they apply to other subpoenaing parties such as private litigants and criminal defendants.

Meanwhile, the Obama Administration called upon Senator Chuck Schumer (D-NY) to reintroduce federal shield legislation.  The Free Flow of Information Act (S. 987) was introduced by Schumer and Lindsey Graham (R-SC). Companion legislation, H.R. 1962, was introduced by Reps. Ted Poe, (R-TX) and John Conyers, (D-MI), in the House.  A bipartisan group of senators, expressing concern that future administrations could easily undo the proposed Justice Department guidelines, introduced an amendment to the bill in an effort to cement Holder’s recommended changes regarding the Justice Department’s guidelines when issuing subpoenas to journalists. Holder’s report stated that while the Justice Department can change some of its policies regarding the news media, it “cannot adopt certain measures without legislative action.”

The problems revealed by the AP and Fox cases are not new. Over the past decade, thousands of federal subpoenas have been issued to the press (or their service providers) by federal prosecutors, private litigants and criminal defendants for all kinds of information, and several reporters were imprisoned and fined for refusing to reveal the identities of their confidential sources.  Only recently, in a chilling ruling, the United States Court of Appeals for the Fourth Circuit said that “there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution of the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in.”  The decision came as a result of New York Times reporter James Risen’s efforts to avoid testifying in the government’s case against Jeffrey Sterling, a former CIA official charged with leaking information about the CIA’s program to interfere with Iran’s quest for nuclear weapons.

The Free Flow of Information Act creates a qualified privilege to protect confidential sources. The bill would circumscribe this privilege in cases where national security is at stake, particularly when a journalist has confidential information that would prevent an act of terrorism or other significant harm to national security. The Act would also provide judges with clear standards for reviewing a motion to quash a subpoena or other compulsory process, which is a common procedure within the judicial system.

A federal shield law would follow the wisdom of the 48 states and the District of Columbia that provide reasonable protections for journalists and their confidential sources. State shield laws have been on the books for decades without hindering law enforcement. In a June 2008 letter to the Senate Judiciary Committee expressing support for a federal shield law, 41 state attorneys general wrote that “recognition of such a privilege does not unduly impair the task of law enforcement or unnecessarily interfere with the truth-seeking function of the courts.” The attorneys general recognized that state shield laws “must now be viewed as a policy experiment that has been thoroughly validated through successful implementation at the state level.”

As a coalition of networks, broadcasters, publishers, and journalism organizations wrote in a letter to the Senate Judiciary Committee urging support of the bill and opposition to any weakening amendments, “journalists work hard every day to give life to the promise of the First Amendment. The ability to protect confidential sources is the oxygen that investigative reporting needs to survive. Without it, journalists cannot provide the public they serve with the spirited, independent journalism that is the lifeblood of American debate and democracy.”

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