Today the prime Senate sponsors of the Free Flow of Information Act—or, as it’s commonly known, the shield bill—announced that they’d reached a compromise with the White House on the bill’s most contentious issues: who would be considered a journalist, and just how much protection journalists would get from subpoenas demanding testimony.
The compromise bill’s definition of who is a journalist—or, in legislatese, a “covered person”—is surprisingly expansive. It sets up no payment or employment test, and therefore would clearly cover student journalists, freelancers, book authors, and any blogger who regularly practices journalism.
The bill treats the balancing act between forcing testimony and granting shield to journalists receiving subpoenas differently, depending on whether the subpoena is brought in a civil trial or a criminal trial. In a civil trial journalists are the most protected—the litigant would be forced to demonstrate why their need for the information would serve a greater public interest that the journalist’s need to protect their source or the information they obtained. In a criminal trial, the situation is somewhat reversed: the journalist would be forced to demonstrate by a higher standard—“clear and convincing” is the proposal’s term—that their need to protect confidential sources or information outweighs the public interest to be gained by providing testimony. Journalists who get subpoenas for information that could prevent a future act of terrorism or other specific harm to national security would get no balancing protection, and would be forced to testify.
Paul Boyle is senior vice president of public policy at the Newspaper Association of America, and has been intimately involved in efforts to bring a federal shield law to life. He spoke briefly with CJR following a conference call discussing the compromise with representatives of media organizations.
Clint Hendler: What were the biggest concessions that the White House was willing to make between their September preferred language and what’s been arrived at today?
Paul Boyle: Well, I think the White House originally would say that there’s no public interest balancing act for leak investigations involving national security. And they also said that there would not be a public interest balancing in civil cases that put the burden on civil litigants that put the burden on the litigants to make the case that the public interest would be served by having the disclosure.
In criminal cases they were originally saying it would have to be extraordinary circumstances for the covered person to make the case that the public interest in news gathering outweighed the compelled disclosure. And they’ve changed that to say that a covered person must make the case by clear and convincing evidence in news gathering and free flow of information outweighs public disclosure. That was a really big trade off. The weight on the scale is sort of tilted towards the government in that section, and the weight on the scale is sort of tilted toward the media in the civil section.
CH: In terms of the actual history of reporters’ subpoenas, isn’t the fact of the matter that most of them come in civil cases? So maybe that’s where stronger protections are needed more of the time.
PB: That’s true. That’s right. And I think that in that situation it’s kind of an unusual thing to ask reporters to reveal confidential sources. You could still get the information, but you’d have to show that the public interest in doing so really outweighs the public interest in news gathering and the free flow of information.
CH: Civil cases are treated a little differently than criminal cases, and criminal cases involving national security and terrorism are treated quite differently than regular criminal cases. Are those the three categories for the different enforcement of the balancing act under the bill?
PB: Yeah. Section 5 is a critical component; it’s the national security exception. At one point, to compel disclosure to prevent significant and articulatable harm to national security or to prevent a terrorist attack there was public interest balance on whether or not disclosure was in the public interest. And that’s gone. And, in reality, if we knew where Osama bin Laden was located, the media would turn that information over. But if the government wanted to compel that, they could say “That’s specific and articulatable harm. We want to prevent a terrorist attack.” We’d never win that case.