Thursday, October 25, 2007
The grand jury investigations of I. Lewis Libby and Barry Bonds involved subpoenas to reporters for their communications with sources who had been promised confidentiality. The federal courts unfailingly found that the demand for information trumped the media's confidentiality claims, with reporters being threatened with civil contempt and jail for refusing to respond to the subpoenas. The House passed the "Free Flow of Information Act of 2007" (H.R. 2102 here) on October 16, and the Senate Judiciary Committee passed a similar bill on October 4 (S. 2035 here), to create a federal journalists privilege for communications with sources. Senator Patrick Leahy, the Judiciary Committee chairman, has had the House bill placed on the Senate calendar to expedite consideration of the two legislative proposals. According to a Judiciary Committee press release (here), the legislation would:
- Establish a federal qualified reporters’ privilege to protect and encourage the free flow of information between journalists and 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;
- Balance 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 essential or crucial to a case or investigation;
- Provide exceptions to the privilege for those situations where information sharing is critical.
Among the exceptions to the privilege in a criminal case is when the court finds that "the testimony or document sought is critical to the investigation or prosecution, or to the defense against the prosecution." The statute does not explain what constitutes "critical" testimony or documents. The use of that term rather than a more commonly used evidentiary term in criminal cases like "material" likely means that the courts will favor the privilege absent exceptional circumstances.
If the legislation passes, it will certainly make subpoenas to members of the media less common, if not almost extinct, because the threshold for obtaining the information will be so much greater that prosecutors may well not even want to pick the fight because it is an almost sure loser. Whether that result is good or bad remains to be seen, but the legislation is certainly something for journalists to cheer. (ph)