We are very pleased to tell you that HR 985, the Free Flow of Information Act, was reported out of the House Judiciary Committee by voice vote on Wednesday, March 25. 

The Free Flow of Information Act is legislation that would, for the first time, create a reporter’s privilege applicable in federal administrative and judicial proceedings. HR 985 is identical to its House predecessor, which passed by a vote of 398-21 in the 110th Congress.  It would create a “qualified” reporter’s privilege available in all federal proceedings – not just court cases, but administrative and legislative hearings as well – for anyone who qualifies as a “journalist”. 

The bill defines “journalist” as one who “regularly gathers prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain” (we’re not exactly enamored of the financial component to this otherwise "functional" definition, but note that a Senate version of the bill does not contain that requirement). 

The bill strikes a balance between protecting the free flow of information from source to reporter to, ultimately, the public and the need to have a reporter testify when necessary to ensure a fair trial.  A reporter would be forced to testify only where it can be shown by a preponderance of the evidence that the information is critical to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, and if all other sources for the information have been exhausted.

If the reporter is seeking to protect the identity of a confidential source, then the reporter can be forced to testify only if those criteria are satisfied and the testimony is necessary to: 

·         Prevent or identify any perpetrator of an act of terrorism against the United States or its allies or other significant and specified harm to national security.

·         Prevent imminent death or significant bodily harm;

·         Identify a person who has disclosed

·         A trade secret of significant value in violation of State or Federal law;

·         Personal health information in violation of Federal law; or

·         Personal financial information in violation of Federal law;

·         Identify the source of a leak of classified information, where the leak has caused or will cause significant or articulable harm to the national security

AND, even if the court finds that the elements of the privilege have been met to the point where the reporter would have to testify – or even provide the identity of a confidential source as part of that testimony – the court must further determine that the public interest in the testimony outweighs the public interest in protecting the free flow of information or the testimony is still a no-go.

HR 985 passed by voice vote, which means it might be difficult to determine if your Representative (if he or she is on the Judiciary Committee) supported the measure.   But by comparing the 50 co-sponsors with the list of members of the House Judiciary Committee, we can pretty much conclude that these Representatives (and others) expressed an "AYE": 

Rep. John Conyers, D-MI (Committee Chair)
Rep. Rick Boucher, D-VA (introduced the legislation)
Rep. Zoe Lofgren, D-CA
Rep. Sheila Jackson Lee, D-TX
Rep. William Delahunt, D-MA
Rep. Robert Wexler. D-FL
Rep. Steve Cohen, D-TN
Rep. Tammy Baldwin, D-WI
Rep. Charles Gonzales, D-TX
Rep. Anthony Weiner, D-NY
Rep. Debbie Wasserman Schultz, D-FL
Rep. Howard Coble, R-NC
Rep. Bob Goodlatte, R-VA
Rep. Ted Poe, R-TX
Rep. Thomas Rooney, R-FL

We believe that this law is vital to the protection of newsgathering and, by extension, democracy.  While we would always prefer that reporters use on-the-record sources, sometimes a promise of confidentiality is necessary to obtain crucial information.  Stories like Watergate leap to mind, but every day anonymous whistleblowers bring to light mistakes, waste, and even outright malfeasance and corruption at all levels of government that would otherwise go unchecked.  

While 49 states and the District of Columbia have some form of reporter’s privilege that protects a reporter from being forced to testify in state court (with 34 of those states having a statutory "shield law"), no similar privilege exists at the federal level (only Wyoming offers reporters no protection at the state level, largely because the issue has never arisen in the state’s courts).   A reporter never expects that he or she will later be called to testify at the moment he or she enters into a relationship with a confidential source.  Yet, it can happen, and that reporter’s ability to protect the source will depend on whether the case is in (a) one of those 49 state courts where there is a reporter’s privilege or (b) federal court, where a series of decisions in the past decade have eroded what was once thought to be a rather reasonable qualified privilege.  So, having no privilege at the federal level really amounts to a reporter having no protection at all at the moment he or she enters into a relationship with a source.  HR 985 and its slightly distinct Senate companion, S 448, would restore that balance. 

Over 70 media companies and organizations have endorsed this legislation, including several of  our clients

We hope you agree.  If you do, the time is now to contact your Congressman, as a floor vote on HR 985 could come as early as next week.