The House of Representatives appears ready to hold a Floor Vote this coming Tuesday, October 16, on HR 2102, the Free Flow of Information Act, a bill that will create, for the first time, a reporter’s shield law applicable in federal proceedings.
Thirty-three states currently have shield laws and another 17 have judicially-created reporter’s privileges. Many bear resemblance to the strong dissenting opinion from Justice Potter Stewart in the key 1972 Supreme Court case of Branzburg v. Hayes. Although the Court ruled in that case that the First Amendment does not protect a reporter from being forced to testify before a Grand Jury, Justice Stewart argued that there were several important public interest considerations favoring the application of a qualified privilege in certain circumstances. Justice Stewart’s opinion was followed by many lower federal courts and was the model for several state shield laws. But, despite the best efforts of the media and others, including the introduction of 99 different versions of shield legislation in the United States Congress between 1973 and 1978, there remains no legal basis for asserting the privilege in federal court.
This omission was recently made more glaring by adverse federal court decisions in high profile cases including jailing of NY Times Reporter Judith Miller for contempt of court and the lawsuit brought by former government scientist Wen Ho Lee against his former employers for violations of the Privacy Act which have left most believing that there exists absolutely protection, under the First Amendment or common law, for a reporter subpoenaed to testify in a federal court proceeding.
Perhaps because of these federal court decisions, the federal shield law movement has never been stronger. The House Judiciary Committee approved HR 2102 by voice vote on August 1, 2007 and its Senate counterpart did the same with regard to S 2035 by a 15-4 vote on October 4.
Over 50 media companies and organizations have endorsed the Free Flow of Information Act, including one of the firm’s clients, the American Society of Newspaper Editors (“ASNE”). ASNE has a substantial amount of information regarding the need for this legislation, as well as several informative editorials in support of a federal shield law, on its website.