Boucher, Pence Try Again For Passage Of A Federal Shield Law

Have introduced Free Flow of Information Act of 2009
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Posted at 3:03 p.m. ET

The bipartisan team of House Communications, Technology & the Internet Subcommittee Chairman Rick Boucher (D-VA) and Rep. Mike Pence (R-IN) will try, try again to get Congress to pass a federal shield law.

They have introduced the Free Flow Of Information Act of 2009. The 2008 version of the bill of the same name passed overwhelmingly in the House (382 to 21), before getting bottled up in the Senate after the administration put on a full court press against it. The administration had threatened to veto the bill and then-Attorney General Michael Mukasey said “10 angels swearing on Bibles” in support of the bill would not change his view that it has major flaws.

There are 37 co-sponsors of the bill, which protects journalists and their sources from government overreach, with carve outs for national security, and proprietary business and medical information.

Virtually all states have shield laws or case law protecting journalists, but numerous efforts to pass a federal shield law have failed over the past several decades.

The shield law bill was introduced with high hopes and bipartisan support in May 2007, with the last session of Congress thought to be the most likely venue for passage in decades, but problems arose over the administration’s concerns over its impact on investigations related to national security and terrorism as well as the bill’s definition of journalists covered--bloggers, for instance.

The bill as introduced Wednesday defines journalism as "the 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."

If that were also the definition of "covered" entity, it could include almost any blogger, but the bill adds money to the equation, defining that covered entity as a person who "regularly gathers, prepares, collects, photographs, records, writes, edits, 13 reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain."

“Often the best source of information about public corruption or misdeeds in a large corporation or charity is a person on the inside of the organization who would like to bring the facts to public light," said Boucher in announcing the bill, "but that person has a lot to lose and to avoid punishment at the hands of superiors will only divulge the information to a reporter if promised confidentiality,” Boucher said. “If confidentiality cannot be assured, the public may never learn of the wrong doing and never have an opportunity to take corrective action,” he added.

“As a conservative who believes in limited government," said Pence, a former conservative talk radio host, "I believe that the only check on government power in real time is a free and independent press. The Free Flow of Information Act would provide a qualified privilege to journalists to shield confidential sources from disclosure except in certain situations such as when our national security is at stake. Ensuring that reporters can keep sources confidential is vital to ensuring the free flow of information to the public."

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