Legislative Alert: Shield Law in Danger

SPJ leaders are outraged that the Obama administration has reversed course and is now proposing changes that essentially render useless S. 448, more commonly known as the Free Flow of Information Act. If implemented, the administration’s changes would weaken the proposed shield law and offer little to no protection to reporters who refuse to disclose confidential sources.

Click here for the SPJ news release.

Most frustrating to SPJ is that the administration’s latest stance is an about face to the support the administration gave early in the process. The revisions are in direct opposition to the promises President Obama made regarding a federal shield law during his campaign and his previous actions as a senator.

It is up to us now to hold President Obama to his promise and to encourage the administration to reconsider its position and focus on the importance of a federal shield law and how vital it is to the existence of a free press and an informed citizenry.

Voice your support!

One way we encourage you – and all journalists – to support S. 448 is by writing editorials or asking your news outlet to write editorials about the federal shield law. Let’s use our tools to help the Obama administration get back on track.

Another more direct option is to contact the White House directly. Use this online contact form to express your disappointment for the revisions the administration made to the federal shield law bill. SPJ provides the following letter, which you can copy and paste into the White House’s online contact form, as an option for your correspondence to President Obama. We also encourage you to write your own letter to show the varying opinions from our members:

Dear President Obama,

I am writing to voice my concern with your administration’s attempts to weaken S. 448 – the Free Flow of Information Act, otherwise known as the federal shield law. As a member of the Society of Professional Journalists, I support a strong and vibrant federal law that protects journalists, their confidential sources, and the public’s right to know crucial information about its government.

You supported this bill as a senator while campaigning and even signed on as a cosponsor in April 2008. Were you serious about supporting a free press and upholding the public’s right to know, or was that merely a passing and forgotten campaign promise?

Unfortunately, the bill has been the victim of misinformation attacks and derailment from naysayers who don’t think journalists should have such federal protections. I urge you not to believe those who say the proposed law would threaten national security or hinder the ability of law enforcement officers to do their jobs. That is not true. What’s true is that journalists are hindered from doing their jobs when the possibility of subpoena and federal prosecution is present. This has a devastating ripple effect – keeping essential whistleblowers silent and putting more distance between the American people and their government.

This bill, as passed by the House in March 2009, is important to a free press and a vibrant democracy. I urge you to keep your campaign promise to support this bill. When you were a senator, you supported the bill in its previous form and signed on as a cosponsor. It would be an absolute disappointment for your administration to further advocate weakening its needed protections.

To learn more about the Obama administration’s revisions, read the New York Times article published yesterday and visit spj.org for more information on shield law efforts and S. 448. If you have any questions, please contact us.

Additionally, to help you craft your own personal statement, SPJ’s legal counsel from Baker and Hostetler provided myths about the bill that have circulated through Congress. Each myth is countered by a fact. Please feel free to use these points when developing your argument.

Myth: A federal shield law is unnecessary because the Justice Department has subpoenaed reporters in only 19 cases from 1992 to 2006.

The reality: This statistic, offered by a Bush administration lawyer in 2007, is irrelevant and inaccurate. First, it ignores hundreds of subpoenas from criminal defendants, civil litigants, and special prosecutors, all of which would be covered by S. 448.. A recent academic study concluded that in 2006 alone, news outlets received 774 federal subpoenas from a wide range of sources. Second, the statistic you note also underestimates the number of subpoenas that came from the Department of Justice. For instance, according to the same recent study, reporters received 175 subpoenas from the DOJ Criminal Division in 2006 alone – and that was only among the news organizations that responded to the survey used to tabulate the data. Study aside, public records alone indicate that far more than 19 reporters were subpoenaed for confidential source information during this period. Indeed, four reporters spent significant amounts of time in jail.

Myth: The DOJ already has stringent rules for subpoenaing journalists.

The reality: The DOJ rules are helpful, but they could be changed at any time and they do not create binding obligations that can be enforced by a reporter who receives a subpoena. And again, they do not apply to the thousands of subpoenas from criminal defendants, civil litigants, or special prosecutors. Finally, even as to DOJ subpoenas, neutral judicial review is necessary to ensure that the subpoena power is not abused; for instance, to ensure that DOJ is not seeking to identify a confidential source who informed the public about, say, misconduct at DOJ itself. To have the same department that issues subpoenas to journalists and has a vested interest in obtaining the information sought review them to ensure that the journalists’ role in society is protected is an inherent conflict of interest.

Myth: S. 448 makes it extremely difficult to subpoena source material from reporters. Among other things, a federal court must generally weigh the need for the information versus the need for a “free flow of information,” a new and undefined term susceptible to different interpretations by different judges.

The reality: The decisions of all trial-level judges are subject to review by appellate courts and the U.S. Supreme Court. To the extent that there are modest differences in application of the Act by courts in different regions, the Supreme Court can and will resolve them – this is no different from the way all other case law interpreting federal statutes develops every day.

Myth: S. 448 would impede national security investigations because the Act requires the government to show that information would “materially assist” in preventing, mitigating or identifying the perpetrator of an act of terrorism.

The reality: The Act imposes a minimal burden on the government – to demonstrate that its assertion of harm to “national security” has some basis in fact. Without this protection, the government could require reporters to identify their confidential sources merely by uttering the words “national security” – even when the information provided by the confidential source informed the public about government wrongdoing and even when the information did not actually relate to national security. Moreover, as the precedent from post-September 11 litigation has demonstrated, courts routinely defer to the government in national security cases.

Finally, thank you for your support of this critically important shield law effort. It is because of dedicated members like you that SPJ continues to improve and protect journalism – just as we have for the past 100 years.

Leave a Reply

Your email address will not be published. Required fields are marked *