Raising the Shield: Free Flow of Information Act
(Story by Carol Thompson) The Free Flow of Information Act, which would be the first federal Shield Law, is not flowing too quickly through Washington.
The Free Flow of Information Act passed out of the Senate Judiciary Committee last September, but has yet to make it to the Senate floor. The bill includes a national security exception and only offers journalists qualified immunity from subpoenas.
Currently, 49 states have a Shield Law, the exception being Wyoming. The law is designed to protect not the professional journalist, but the sources who provide information that otherwise might not be accessible.
While the Shield Law varies from state to state, the premises are the same. The laws allow news reporters the privilege to protect their sources, although privilege must be balanced against a variety of competing government interests such as the right of the government to apprehend criminals and to prevent the impairment of Grand Jury investigations.
In some states, a journalist must prove the source was granted anonymity under the Shield Law. For that reason, many reporters will read the law to a source and provide a copy. But, there are times when a court can compel a journalist to turn over notes, tapes, and the name of a source.
In 1975, Congress passed Federal Rule of Evidence 501 concerning privileges. Under this rule, privilege as outlined in state law is to be applied in all civil actions and proceedings, however, a number of issues have been raised concerning the scope and application of this privilege.
One such issue is who qualifies as a professional journalist? Many state statutes define a journalist as one who communicates via newspaper or is employed by a news organization. Another issue is how news should be defined.
Some states do not consider freelance journalists as “professional” journalists, hence, the Shield Law may not apply. Citizen journalists are also not covered under the law because they are not professionals or employed by a news organization.
While state statutes protect the sources of professional journalists on the state level, there is nothing to protect them on the federal level.
One of the most prominent cases challenging the rights of a freelance journalist occurred August 1, 2006, when a federal district judge sent, Josh Wolf, a freelance video journalist and blogger, to prison. Wolf, a recent college graduate who did not work for a mainstream media organization at the time, captured video footage of an anti-capitalist protest in California and posted portions of the video on his blog. Federal prosecutors subpoenaed Wolf to testify before a grand jury and to hand over the unpublished portions of his video in an attempt to identify protestors. Wolf refused to comply, citing that the First Amendment allows journalists to shield their newsgathering materials. The judge rejected his argument and Wolf spent 226 days in federal prison.
Still at issue is the definition of a professional journalist and who will be covered and to what extent.
The bill can be viewed at https://www.govtrack.us/congress/bills/113/s987#overview.
(Image: Flickr | luisdesistemas and digitaljournal.com)