Boucher High On Shield Law Chances
Prospects have brightened considerably for a federal shield law that would protect journalists, including bloggers, and their sources from government overreach.
Flanked by the heads of the Newspaper Association of America, the National Association of Broadcasters and the Reporters Committee for Freedom of the Press, Rep. Rick Boucher (R-Va.) officially introduced the Free Flow of Information Act of 2007 at a Capitol Hill press conference Wednesday, saying the goal was passage within the year.
He also surprised even a fellow legislator with the news that an identical companion bill was being introduced in the Senate by Senators Richard Lugar (R-Ind.), Christopher Dodd (D-Conn.), Lindsey Graham (R-S.C.), Mary Landrieu (D-La.), and Pete Domenici (R-N.M.).
The House bill also has the backing of Senate Judiciary Committee Chairman John Conyers (D-Mich.).
A similar bill was pushed in 2005 but met some opposition from Republicans, from business interests concerned about the disclosure of trade secrets and other personal information, and from a journalistic community still divided over what form the bill would take.
But the new bill is being introduced under Democratic leadership, with a more united journalistic community than in previous attempts, said Boucher, and with what co-sponsor Mike Pence (R-Ind.), called a "national awakening to this crisis." He identified that crisis as a wave of subpoenas, threatened imprisonments and actual jail time, citing Judith Miller and the subpoenas issued by the Justice Department seeking information from San Francisco Chronicle reporters on their investigation into steroids in baseball.
Lucy Dalglish, who heads the reporters committee, said that, just this week, subpoenas were issued to eight news organizations who reported on the FBI's investigation into the Capitol Hill anthrax scare.
The bill's exemptions include the revealing of trade secrets, which was an effort to address the concerns of the business community.
The bill does not assert an absolute privilege, but Boucher called the exceptions limited and pointed out that even those exceptions would be subjected to a balancing test in which a judge would have to take into account "both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information."
The bill's exemptions do allow the compelling of testimony or documents, assuming all reasonable alternative sources of the information have been exhausted, when: 1) such disclosure is necessary to prevent imminent and actual harm to national security, 2) disclosure is necessary to prevent imminent death or bodily harm, or 3) to identify someone who has disclosed trade secrets of "significant value" in violating of existing law, or has revealed identifiable health information or other personal information in violation of existing laws.
But just as the privilege is not absolute, the exemptions aren't either. There must also be a finding that to compel disclosure, even in those cases, is in the public interest given the public's interest in newsgathering and the free flow of information.
"It is time to repair this tear in the first amendment," said Pence.
NAB President David Rehr said he strongly supported the bill, calling it a "crusade for freedom" and a top priority for the association.
Journalism is defined in the bill as "gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public."
All the legislators agreed that would cover any blogger who fit the bill. Also covered are supervisors, employers, parent companies, subsidiaries or affiliates" of news organizations.