The case for a federal shield law
In 2006, two proposals for federal shield laws were introduced in Congress, one in the Senate and one on the House. They are called the “Free Flow of Information Act.” Several hearings were held on each, with the US Department of Justice (DOJ) opposing them. But through the work of the Reporters’ Committee on Freedom of the Press and other news organizations, the DOJ seems willing to begin discussions on a limited shield law. So far this year, neither bill has been reintroduced.
Since being released from home confinement in April 2005, I have traveled throughout the country, attending seminars and speaking (on a volunteer basis) on the need for a federal shield law for reporters. Many other journalists, both from broadcast and print, indeed feel there is such a need. But the debate among the press and in Congress about the scope of any such law is a passionate one highlighting the myriad problems with passing a law granting reporters the legal right to withhold the identity of a confidential source.
Federal appellate courts have upheld the findings of the 1972 decision Branzberg v. Hayes — which essentially said that the 1st Amendment does not give reporters the right to protect confidential sources when a grand jury needs information from them.
The question, then, that must be decided by the American press and public is whether to seek a blanket shield law, which would protect journalists from being subpoenaed to testify before grand juries in all situations, or a modified shield law that contains exceptions for serious crimes and national security reasons. There is a growing consensus among many leading news organizations that a modified shield law is the best route to take. While a number of reporters consider the modified version unacceptable, many of my colleagues and I think it better to have something than nothing.
In cases of national security, or when another human being’s life is in imminent danger, the press has little cache when making a case for absolute privilege. The public will never buy it, and either will Congress. The Department of Justice also has a legitimate concern for having the ability to gather evidence in a criminal case.
The DOJ, on the other hand, should not be allowed to indiscriminately subpoena reporters, and judges should be careful not to send reporters to prison for purely punitive reasons, as US District Court Judge Ernest Torres did in my case. Finding me in contempt, and sentencing me to home confinement, did little good. I certainly would not hesitate to refuse to disclose a confidential source in the future. And from what I can tell, it did little, or nothing, to discourage other people from providing journalists with protected information.
: News Features
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