The U.S. Senate Judiciary Committee passed the Free Flow of Information Act (S 987) by a 13-5 vote this past week and, yes, it matters to AAN members. Here’s why it’s important generally and why it’s important to you.
S 987 is the latest proposal for a federal reporter’s shield law that would protect reporters from having to testify in court when subpoenaed and would make it harder for federal authorities to subpoena information relating to media entities’ e-mail or telephone communications. The U.S. House of Representatives has passed its own version of this legislation on two separate occasions (the second time by unanimous consent). But the bill has only made it through the Senate Judiciary Committee once – in 2009 – and even then it was pretty clear that it still faced a tough road to get through the entire Senate in the face of significant opposition generally and from some key Senators.
The conditions for ultimate passage are significantly better this time around. There’s still a lot of time left in the 113th Congress to get this done and the bill that passed out of the Judiciary Committee has broad bipartisan support and the backing of more than 70 media organizations and companies (including AAN). We believe that more than 50 Senators will vote “YES” on S 987 and remain very confident that at least 60 – the number needed to shut down any filibuster and force a quick vote rather than prolonged debate designed to kill the bill – also support the bill.
The compromise reached on the definition of a “covered journalist” (formerly “covered person”) who can invoke the bill’s protections is integral to its widespread support. Senators Dianne Feinstein (D-CA) and Richard Durbin (D-IL), both of whom wield a significant amount of influence on the Judiciary Committee and generally, threatened to hold the bill up because they didn’t support the original definition of a “covered person” which was “functional” in nature, looking at what the individual claiming the privilege was doing when he or she acquired in the information being sought by the court – was he or she acting as a journalist, gathering information with the intent for ultimate dissemination to the public?
Senators Feinstein and Durbin, working with Senator Schumer introduced an amendment to “covered person” which was eventually incorporated into the bill that was approved by the Senate Judiciary Committee. The bill now offers a privilege to:
Someone who, (1) when he or she obtained the information in question, worked for an entity that disseminates information by newspaper, book, wire service, news agency, mobile app or other news or information service in print, electronic, film, TV, radio or MVPD; (2) engaged in regular newsgathering, preparation, collection, photographing, recording, writing editing, reporting or publishing by conducting interviews, making direct observations or collecting reviewing or analyzing information in various forms with the primary intent to investigate and procure material to disseminate to the public news and information; (3) showed an an intent to gather news and information at the inception of the newsgathering process; and (4) obtained the news or information in order to disseminate it to the public.
Someone who (1) at the beginning of the newsgathering process, had the intent to investigate issues and events in order to disseminate news or information to the public and regularly conducted interviews, reviewed documents, captured images or directly observed events; (2) obtained that news or information to disseminate it by means of newspaper, book, wire service, news agency, mobile app or other news or information service in print, electronic, film, TV, radio or MVPD; and (3) either (a) would have worked for newspaper, book, wire service, news agency, mobile app or other news or information service in print, electronic, film, TV, radio or MVPD for any continuous one year period within the 20 prior years or any continuous three month period within the previous 5 years; (b) had substantially contributed as author, editor, photographer, producer to a significant number of articles, stories, programs or publications to one of the media discussed above, within the prior 5 years; or (c) was a student working for a publication at an institution of higher education
Was given protection by a judge who determines that such privilege is in the interest of justice and necessary to protect lawful and legitimate newsgathering activities
So there is now a melding of the “functional” test from the original bill and the “status” based test we generally disfavor. However, we feel the test is still sufficiently broad that AAN members and their employees will be protected. Given that the compromise legislation greatly increases the chances that the bill will pass, we decided that even a minor watering down of the definition warranted our support.
Why does this matter to AAN members? Because contrary to popular belief, a federal shield law will not protect only those who cover the federal government or engage in national security or foreign affairs reporting and receive “leaked” information from federal government employees. It potentially applies anytime you are asked to testify before federal authorities. When your reporters talk to sources – even on a purely local level – you don’t know where things are headed.
We can cite several examples where reporters covering local government found themselves exposing crimes that led to federal charges. Or, two parties suing each other in federal court need information that you have published. This law will help you in either situation – allowing you to protect a source in the former and keeping you from being on the receiving end of what are largely annoying subpoenas filed by parties ignorant of the effect their request has on a working reporter.
So, yes, the federal shield law matters to alternative newsmedia. And yes, you should be very happy that it’s taken a huge step forward. Now it’s time to do your part: please reach out to your Senator and Senate leadership (Majority Leader Harry Reid (D-NV) and Mitch McConnell (R-KY)) and ask that they bring S 987 to the Senate floor in the near future for a vote by the full Senate (and, of course, ask that they vote “YES” on the bill).
You can contact AAN Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg[at]fhhlaw.com if you need more information about this issue.