Federal Media Shield Law Debate Heats Up

S. 2035, The Free Flow of Information Act of 2007 has languished since it was favorably reported to the Senate by the Senate Judiciary Committee on October 4, 2007 [Thomas Resources]. The House passed a related bill, H.R. 2102, with bipartisan support (398 - 21) on October 18, 2007 [Thomas Resources]. The Federal Media Shield legislation will:

• Establish a federal qualified reporters’ privilege to protect and encourage the free flow of information between journalists and confidential sources;
• Reconcile a reporter’s need to maintain confidentiality -- in order to ensure that sources will speak openly and freely -- with the public’s right to effective law enforcement and fair trials;
• Balances the public interest in combating crime and protecting national security and the public interest in ensuring a free and vibrant press by providing that a federal court can only force a journalist to reveal confidential source information when the information is truly crucial to a case or investigation;
• Requires the party seeking a reporter's confidential information to exhaust all reasonable alternative sources before turning to the media;
• Contains exceptions to the privilege for those situations where information sharing is critical. For example, a reporter may not withhold source information where such information is needed to prevent a terrorist attack, significant harm to our national security, death, kidnapping, or substantial bodily harm. Journalists who witness crimes also cannot refuse to share their eyewitness observations;
• Defines “journalist” to include anyone who regularly engages in journalistic activities -- so that legitimate bloggers that disseminate information about matters of public interest are covered by the qualified privilege.

On March 6, 2008, Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Arlen Specter urged party leaders to schedule floor consideration of S. 2035 [Text of Letter to Majority Leader, Senator Harry Reid (pdf)]. See also Media Coalition Letter to Senator Harry Reid Supporting the Free Flow of Information Act (March 11, 2008) (pdf).

On April 17, 2008, US Attorney General Michael Mukasey voiced his opposition to the bill in a USA Today opinion piece. Kathleen A. Bergin (South Texas) has taken on Attorney General in a series of posts on First Amendment Law Prof Blog. Check out Part I (April 29) and Part II (May 2). [JH]