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.
But if there were a leak situation, that would go under the criminal area. If there were a leak investigation looking at the CIA prison story, or the warantless wiretapping leak, Abu Ghraib, it would go under section two, or the criminal section. If you were investigating a past leak you would have public interest balancing. The reporter would at least have the ability to say “Here, there’s clear and convincing evidence to say that this story was valuable to the public,” and be able to make the case that the source could be protected. But if there were a leak that the government could demonstrate that there’s going to be significant and articulatable harm, or potential for a terrorist attack from that leak, then they could get the information.
CH: Let’s take as a recent example the Times’s wiretapping story. Many people argued that that story did make attacks more likely. Is that a case where there would be a battle about whether or not that argument—that attacks would be more likely because the program was exposed—was far enough along the line of a significant and articulatable harm?
PB: You can’t really look at any kind of case and try to predict the outcome. It all depends on how it’s presented, and the facts. I think what’s important with this bill is that you know what the rules and procedures are, so you don’t have to spend any energy and time and resources knowing where the lines are drawn. In that situation, I imagine lawyers would argue that it revealed that this was going on to members of Congress and the general public, and led to legislation enacted by Congress to change warrantless wiretapping. These things are going to be balanced out and judges are fully capable of balancing the competing interests on both sides. And they do it everyday.
This bill was never about a particular case. It was always about clear rules of procedure and giving guidance to the courts. And I think case law will develop.
CH: In the event of a criminal leak investigation, the argument that that leaker might leak again wouldn’t be sufficient to compel testimony from a covered person. Is that correct?
PB: Yes. The language is fairly complex. It says the government can’t, on its face, say the fact that the leaser would leak again. That’s not good enough. They have to provide further evidence that there’s going to be the potential for a future leak, and present facts to that.
With this bill, on national security leaks, for the most part the government can’t go up there and say “We need the information for national security.” They’ve got to demonstrate why they need the information. On leaks, it protects that perspective; it provides balancing when the government is looking back.
CH: You were on this conference call that just broke up. How is this being received?
PB: I think there was a lot of good discussion. There was discussion about the clear and convincing evidence standard, and whether or not that was too much of a give. There were some folks who were concerned about that, and there was some conversation about whether non-confidential information was protected. It’s much clearer in the house bill that there’s protection for non-confidential information.
CH: So, information that was given without the explicit promise of it being confidential?
PB: Correct. But generally speaking, at the end of the day, people felt this was a good compromise worth our support if indeed this gets the administration to support the bill and we can get this to the president’s desk.
CH: And there’s still a long way to go.
PB: Absolutely!
CORRECTION: Paul Boyle is not, as the article originally said, the Newspaper Association of America’s general counsel. The text has been corrected.
Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.