Free Flow of Information Act clears a crucial legislative hurdle.
We have some good news for journalists – and broadcast stations that still boast real news operations!
The Senate Judiciary Committee has approved the Free Flow of Information Act (that would be S.987) by a 13-5 vote. If ultimately enacted (more on that below), this bill would establish a federal “shield law” or “reporter’s privilege”. As a result, certain journalists would be protected from having to testify in federal court – a protection most often invoked by the reporter unwilling to disclose the identity of a confidential source. Journalists’ communications records would also not be subject to subpoena by federal authorities seeking to use those records to identify a reporter’s source.
The reporter’s privilege is nothing new. Approximately 40 states and the District of Columbia already have their own shield laws. Every other state (with the exception of Wyoming) affords either absolute or qualified privilege based on state court precedent. But the Free Flow of Information Act would create a privilege applicable in federal proceedings for the first time ever.
The privilege would be “qualified”. That means that the government or an interested civil litigant could still force the journalist to testify or produce documents in certain situations. (The precise showing necessary to overcome the privilege would vary according to the type of case – civil, criminal, cases involving the receipt of classified information.) Nevertheless, the protections afforded by the proposed shield law would apply across the board, not just to cases involving national security issues. In other words, it would benefit a wide range of news operations.
I recently wrote a piece for the Association of Alternative Newsmedia (full disclosure: they’re a client of mine), explaining why the law is important to all journalists, not just those that cover national security and intelligence issues. If your business involves any kind of news operation, you will likely benefit from the law. Take a look my analysis and decide for yourself.
Next up, the bill will go to the Senate floor. When? We don’t know yet. In 2009, when an earlier version of the Free Flow of Information Act made it through the Judiciary Committee, it got bogged down in the Senate. Hopefully, this time around there is enough additional momentum and support for the bill to avoid any parliamentary tactics designed to prevent a vote.
Of course, even if S.987 passes the Senate, House approval will still be required. It’s uncertain whether the House, which has its own version of the bill (H.R.1962), would try to pass that version as is or instead simply try to move the Senate version to a vote. (The former approach, of course, would eventually require resolution of any differences between the House and Senate versions.) President Obama has already expressed his support for the Free Flow of Information Act, so we expect that he would sign this bill if presented to him.