Ryan-Cosponsored Media Shield Bill Passes House
The U.S. House of Representatives today passed H.R. 2102, the Free Flow of Information Act of 2007 (also know as the media shield bill) - legislation cosponsored by First District Congressman Paul Ryan that would help safeguard the free flow of information from the media to the public and provide protection at the federal level for the relationship between reporters and their confidential sources. Congressman Ryan voted in favor of the bill.
As the Washington Post put it in a recent editorial: "Protecting the identity of a source is a bedrock of American journalism. Unfortunately, recent history has shown that some federal prosecutors and civil litigants do not value this flow of information as much as those of us in the media and the public do. In recent years, more than 40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases. While 49 states and the District of Columbia have shield laws or court decisions that protect the relationship between reporters and their sources, there is no statutory protection at the federal level."
H.R. 2102 draws largely on internal Justice Department guidelines put in place more than 30 years ago, so it is not a radical departure from time-honored practices regarding journalists' right to report stories and seek sources without fear of imprisonment. Rather, it prevents journalists from being compelled by a federal entity to testify, produce documents, or disclose sources in civil and criminal cases, unless certain standards and conditions are met.
"This legislation helps ensure that our freedom of the press does not erode and that the free flow of information between the media and the American public continues unhindered," Ryan said. "Reporters should be able to do their jobs and whistleblowers and other confidential sources should be able to speak to the media without undue fear that they will end up in court. The American public benefits when the public and the media can share information freely, and we need to protect this right. At the same time, this bill makes reasonable allowances for cases where life or death hangs in the balance."
Under the Free Flow of Information Act, a federal entity may not compel a journalist (or their supervisor, employer, parent, subsidiary or affiliate) to provide testimony or produce any document related to information they obtained or created as part of their journalistic endeavors, unless a court determines by a preponderance of the evidence - after providing notice and an opportunity to be heard to the journalist - that certain conditions have been met. These conditions are as follows:
1.That the party seeking to compel the journalist's testimony or production of documents has exhausted all reasonable alternative sources of the testimony or document.
2.That in a criminal investigation or prosecution there are reasonable grounds to believe that a crime has occurred, and the testimony or document sought is critical to the investigation or prosecution or to the defense against the prosecution; or in a matter other than a criminal investigation or prosecution, the testimony or document sought is critical to the successful completion of the matter.
3.In the case that the testimony or document sought could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of the identity of such a source, that
*disclosure is necessary to prevent an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm;
*disclosure is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm; or
*disclosure is necessary to identify a person who has disclosed a trade secret or private medical or financial information.
4.That the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.
An amendment by bill sponsor Rep. Boucher was adopted on the House floor today that provides that this media shield can be pierced to prevent or identify the perpetrator of a terrorist attack or harm to national security. The amendment also provides that, in cases involving leaks of properly classified information, the disclosure of the leaker's identity can be compelled. Additionally, this amendment permits law enforcement to obtain an order compelling the disclosure of documents and information obtained as the result of eyewitness observations of alleged criminal or tortious conduct. It also specifies that for a person to be covered by this media shield, they must regularly engage in the listed journalistic activities.
In addition, this legislation clarifies that it does not apply to a person who is a foreign power or an agent of a foreign power, or to any organization designated by the Secretary of State as a foreign terrorist organization.