Analyzing the Free Flow of Information Act

The media's coverage of events like the Watergate Scandal, steroids in Major League Baseball, CIA informants, and the treatment of prisoners at Abu Ghraib have landed news outlets across the nation in a very heated and complicated legal debate. Brought into question is the appropriate legal rule afforded to journalists in the form of a federal shield law, or lack thereof. A pair of highly contested federal reporters' privilege bills, introduced into both the House and Senate in February 2005, has brought the discussion to a fever pitch. In this paper, I hope to gain a better understanding of the controversy surrounding the Free Flow of Information Act, while answering these questions:

1. Why has a federal shield law never been passed and what are the major issues that are causing complications in the legislative process?

2. What is the most fair and objective way to define a journalist within the parameters of the law?

3. What is the difference between an absolute reporter's privilege and a qualified reporter's privilege, and how does that factor into the legislation?

4. How does the lack of a federal shield law affect the number of subpoenas served to members of the media each year?

5. What impact do media subpoenas have on newsgathering?

In February 2005, U.S. Representatives Mike Pence, R-Indiana, and Rick Boucher , D-Virginia, joined forces to introduce a bipartisan bill outlining a federal shield law (Lystad, 2005, p. 15). Due to previous federal shield law failures, Pence and Boucher looked to the guidelines established by the Department of Justice, governing the circumstances under which subpoenas can be issued to members of the media, to create a piece of legislation that addressed the issues raised by the previous attempts made at shield law legislation (Lystad 2005, p. 15). The guidelines for the new legislation, known as the Free Flow of Information Act of 2005, were first introduced by the Department of Justice in 1973 and have been in continuous operation since that time (Lystad, 2005, p. 16). By basing the legislation on these age old standards for the issuing of media subpoenas, Pence and Boucher felt they were setting forth a bill that addressed and acknowledged the interests of both journalists and the legal system (Lystad 2005, p.16). Also during this time, Senator Richard Lugar, R-Indiana, introduced a companion piece of legislation into the Senate, marking the start of a very long and complicated debate over a Federal Shield Law (Lystad, 2005, p. 16).

Each of these bills has undergone a number of alterations since they were first introduced in 2005, but the one thing that has not changed is the idea behind the bills. Each bill clearly states that the objective of passing the legislation is, "To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media" (S. 448, 2009, p.1). However, within the actual text of the bill, a number of sticking points developed preventing the passage of this legislation. This raises the issue posed by question number one, what are the major issues preventing this bill from passing through Congress?
In an interview conducted with the Society of Professional Journalists President Kevin Smith (2009), the topic of what is preventing the passage of a federal shield law was broached and Smith summed up the entire conflict with one term, national security (personal communication, October 12, 2009). According to Smith (2009), the fear that a shield law would too easily compromise national security is the main reason why both the Bush administration and Obama administration shied away from passing such a measure (personal communication, October 12, 2009). Smith (2009) says any journalistic piece that raises national security concerns should be brought before a third party arbitrator. The arbitrator could then decide whether a prosecutor had exhausted all resources for obtaining the information and rule whether the prosecutor can subpoena the journalist or not (personal communication, October 12, 2009). This is how the process should happen in his eyes; the decision should not be in the hands of the Department of Justice (personal communication, October 12, 2009). For Smith (2009), national security should really be a non-issue. He says he understands the interest, which is why he has never pushed for an absolute privilege (personal communication, October 12, 2009). In a 2009 article, Smith (2009) says,

This bill before the Judiciary Committee is the product of three years of negotiations that addresses who can identify themselves as a journalist and when national security needs to be exempted from anonymous source protections. It has reached this threshold because a lot of thoughtful consideration has been paid to these concerns and compromises have taken place. This bill doesn't and never has sacrificed national security for the sake of sensationalism. (P. 2).

Smith's view on national security is not shared by everyone however. In a 2008 article published in USA Today, Director of National Intelligence Mike McConnell (2008) stated that he feels the Free Flow of Information Act would wrongly protect the press.

It is a delicate balance to protect national security information from improper disclosure, while respecting the rights of the press to publish information it deems of public interest. This legislation upsets that balance by shielding those who illegally leak national security information and increasing the likelihood of destructive revelation in the future (p. 1).

McConnell (2008) went on to say in that same article that to pass the Free Flow of Information Act, would be to essentially cripple the ability of the government to pursue those who place the national security of this country in jeopardy (p. 1). In a piece published in the U.S. News & World Report, U.S. Department of Justice assistant attorney General Elisebeth Cook (2008) says:

Creating a privilege for journalists would do more harm than good: First they are largely prospective and would not apply after a crime has been committed. Second, we would still have to produce classified and sensitive information in order to compel reporters to disclose their sources. Third, even if we meet the bill's exacting standard, judges could still prevent us from obtaining critical source information. This would undermine, if not eviscerate, the government's ability to obtain information that could be necessary to protect national security, investigate acts of terrorism, or identify leakers of classified information (p. 1).

Aside from national security, organizations such as the Society of Professional Journalists say that legally defining a journalist is the next most critical aspect in passing the legislation (personal communication, October 12, 2009). This has been a point of debate, as the discussion over how to legally define a person connected with the news media has become a very important issue.

According to the proposed legislation in the Senate (2009), a covered person is,

(A) a person who is engaged in journalism;

(B) includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A); and

(C) does not include any person who is--

(i) a foreign power or an agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

(ii) a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));

(iii) designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order Number 13224 (50 U.S.C. 1701);

(iv) a specially designated terrorist, as that term is defined in section 595.311 of title 31, Code of Federal Regulations (or any successor thereto); or

(v) a terrorist organization, as that term is defined in section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)). (S. 448, p.5-6).

An interview with Society of Professional Journalists President Kevin Smith revealed that the definition of a journalist laid out within the text of the proposed legislation is very similar to what he feels the definition should be (personal communication, October 12, 2009). Smith says that a journalist is anybody who practices journalistic work, and it is this definition that he would like to see applied to the law, "There should be nothing else that defines a journalist other than someone who performs acts of journalism, collecting and disseminating information" (personal communication, October 12, 2009). Though Smith says he hopes that the legislation would define a journalist in the broadest possible way, he realizes that this is probably not a reality and that in order for the legislation to be passed some sort of compromise may have to be reached (personal communication, October 12, 2009).

The third and final major aspect of the proposed legislation causing angst among those on Capitol Hill is the distinction between an absolute and a qualified privilege. According to Washington lawyer Robert D. Lystad (2005), the original piece of legislation drafted by Representatives Pence and Boucher contained an absolute privilege for journalists when it came to confidential sources. This means that a reporter's right to refuse to identify a source could not be trumped by an issued subpoena. A qualified privilege also existed, but it would be applied to all other information not including confidential sources (Lystad, 2005, p.16). The present legislation has retracted that absolute privilege and currently contains only a qualified privilege (H.R. 985, 2009, p. 1-4). Kristen Anastos (2007) of the Seton Hall Legislative Journal said in a 2007 article.

This qualified privilege may be overcome only when a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard that the federal entity seeking the confidential information can show that (1) all non-media sources have been exhausted; and (2) the testimony and disclosure sought is essential to the case or investigation and has been corroborated by the information obtained from a source other that the reporter from which disclosure is being compelled; or (3) the disclosure of the identity of a source is necessary to prevent imminent and actual harm to the nation's security (p. 4).

Herein lies the conflict for supporters of the bill, such as SPJ President Kevin Smith. Smith says more often than not, prosecutors are not abiding by these conditions laid out by a qualified privilege. He says it is essential that prosecutors utilize every available resource to ascertain the source name and/or information before resorting to a subpoena. Smith says, "If he (the prosecutor) does his due diligence, then he can go to court and subpoena the reporter to get the source. Prosecutors are not doing their work and utilizing all resources; they go straight to court and a subpoena" (personal communication, October 12, 2009).

Subpoenas served to working members of the media have received a significant amount of attention in recent years, and in 2008 an article published by Brigham Young University Law Professor RonNell Andersen Jones discussed the findings of her in depth study regarding the impact of having no federal shield law on the number of subpoenas served to the media (Jones, 2008, p. 1-2). Jones conducted a study in which 761 news organizations participated and responded, revealing that a total of 3,062 subpoenas were received by those organizations in the 2006 calendar year (Jones, 2008, p. 31). Based on that study, Jones concluded, "Weighting responses to estimate actual values for the entire population suggests that a total of 7,244 subpoenas were received by all daily newspapers and network-affiliated television news operations in the United States that year" (Jones, 2008, p. 31). The statistically weighted data also suggests that of the 7,244 media subpoenas, 774 of those subpoenas issued were federal subpoenas, this number is nearly twice the number of federal subpoenas issued in 2001 (Jones, 2008, p. 35). Jones does not ever claim that these statistics are the end-all to the on-going debate over how the lack of a shield law has affected subpoenas issued to the media (Jones, 2008, p. 49). She (2008) says, "Subpoenas to the media are happening with some regularity, they are not limited to the media organizations or the substantive issues that have been involved in the highest-profile recent cases, and, at least in some categories, they appear to be on the increase" (p. 49). Kevin Smith stands behind the findings of Jones' study saying, "Federal subpoenas are absolutely, positively out of control. A subpoena of a journalist should be the last means of acquiring information" (personal communication, October 12, 2009).

There are a number of people who strongly disagree with the claims that the number of media subpoenas has been steadily rising for the last decade (Shafer, 2008, p. 1). In a 2008 article published in Slate magazine, Editor Jack Shafer discusses a number of arguments against a federal shield law, citing Department of Justice official Michael Battle as an expert on the subject. According to Battle, claims that the number of media subpoenas has risen are unfounded and false, "In the past 15 years, in only 13 cases have subpoenas been issued to reporters for 'confidential source' information-an average of less than one case a year. It's difficult to conceive of a 'chilling effect' on legitimate journalism from this record" (Shafer, 2008, p. 1). Shafer (2008) says that the number of subpoenas have not been increasing at an alarming rate because prosecutors are wary of using a subpoena to obtain confidential source information (Shafer, 2008, p.1). In the same 2008 article, Attorney General Richard Thornburgh says, "Most prosecutors are very wary for a practical reason: You don't want to get the media mad at you" (Shafer, 2008, p.1).

Aside from the sheer number of subpoenas issued to the press, Professor Jones also published an article analyzing a media study done by First Amendment scholar Vincent Blasi, in which the perceptions of members of the media and the impact of subpoenas in the newsroom was analyzed (Jones, 2009, p. 317). In analyzing the effect these subpoenas have on news coverage, Jones writes, "As was true of Blasi's data forty years ago, it appears from this evidence that the practice of subpoenaing reporters has, in several instances, had a significant detrimental effect on the quality of news coverage" (Jones, 2009, p. 354). Whether it be time, money, material-retention, news coverage, or availability of confidential sources, the data shows that newsrooms have suffered a negative impact as the number and threat of subpoenas has risen (Jones, 2009, p. 354-370). SPJ president Kevin Smith reflects on this idea saying:

News organizations will begin to not report stories because it may cause financial burdens they can't afford. These stations will begin to pass up stories that they normally would cover, due to the fear that reporting the story could result in huge financial problems or even jail. And, sources will begin to dry up because reporters will no longer be able to guarantee protection of their identity. The American public is supposed to decide if a story is important enough to cover, that decision should not be in the hands of the legal system (personal communication, October 12, 2009).

This effect is evidenced by the case of WJAR-TV Investigative Reporter Jim Taricani. In 2001, Taricani was leaked an FBI surveillance tape, which had video evidence of corruption within the local government in Providence, Rhode Island. Taricani used the footage in an investigative report that aired in February 2001. Taricani was served a federal subpoena requiring him to reveal the source that leaked him the tape. After refusing to reveal the source, Taricani was convicted of criminal contempt of court and sentenced to six months of house arrest (Shields and Subpoenas, 2009, p. 150). Taricani's (2009) decision to resist the subpoena brought forth a huge financial burden for WJAR-TV and the NBC network, totaling over $600,000 (personal communication, November 16, 2009). Taricani (2009) says that it is this financial threat that is causing many reporters and news organizations to pass on stories they would normally cover, "My case was an exception. Very few reporters get the financial support that I did, and without the financial power to back their case, they will find themselves in jail within five minutes. The threat of a subpoena has had a major impact on investigative journalism, and is really preventing reporters from informing the public and serving as a check, if you will, on the government" (personal communication, November 16, 2009).

As a result of his case, WJAR-TV instituted a new policy regarding the use of confidential sources (personal communication, November 16, 2009). WJAR-TV reporters like Taricani are now required to have their confidential sources sign an affidavit that states they understand the reporter and the station will protect the source until a federal subpoena is issued. At that point, the reporter will be forced to give up the source (personal communication, November 16, 2009). Taricani (2009) says this new policy has adversely affected his reporting a number of times, "This year (2009) alone I have been unable to run three different stories, due to the fact that sources I was using wished to remain anonymous, and I couldn't give them that guarantee" (personal communication, November 16, 2009). Taricani says that the lack of a federal shield law will not eliminate investigative journalism altogether, but he says it will serve as a severe detriment to quality journalism of all types, but especially that of investigative journalism (personal communication, November 16, 2009).

Currently, the Free Flow of Information Act has been passed by the House and is being debated by a Senate sub-committee, though based on the research and information; it appears as if the debate will be long and arduous. There is no easy way to determine exactly why this piece of legislation has not been passed after so many attempts to do so, but three common factors have been continuously discussed among supporters and dissenters. Until a compromise is reached on how the legislation will pertain to national security, what the legal definition of a journalist will be, and the exact protections afforded to journalists by a qualified privilege the legislation will move no further. Journalists around the nation will continue to be issued subpoenas and eventually the news coverage in America will be affected. However, the issues surrounding this piece of proposed legislation are so complex and subjective, that to determine the best way to put a reporter's privilege into law is rather unclear. In the end, for a federal shield law to be passed, a middle ground will have to be reached or this bill will die in committee as it has so many times before.

The debate over a federal shield law is far from over, which leaves room for more research and analysis of the issues surrounding journalists, the Department of Justice, and the issuing of subpoenas to members of the media. I think it would be interesting to narrow the focus of an entire piece of research to only the issue of subpoenas and the effect they have on newsrooms across the country. Based on the few people I talked to, there is a common feeling among journalists that the lack of a federal shield law is a detriment to the quality and content of journalism in this country.

I really think this is a very important issue that all journalists should be familiar with. Whether Congress chooses to pass the bill or not, it will shape the future of journalism, especially investigative journalism, and create the standard by which future journalists, like myself, will model our work after.

Works Cited

Anastos, Kristen. (2007). Protecting the Public Interest? Why Qualified Legislative Protection Undermines the Need for a Federal Reporters' Privilege. Seton Hall Legislative Journal, 31(2). Retrieved from http://vnweb.hwwilsonweb.com/hww/results/results_single_fulltext.jhtml;hwwilsonid=JRP0ZQ2VTDEULQA3DINCFGOADUNGIIV0

Andersen Jones, RonNell. Personal communication, November 13, 2009.

Andersen Jones, RonNell. (2008). Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media. Minnesota Law Review, 93(2). Retrieved from http://ssrn.com/abstract=1125500

Andersen Jones, RonNell. (2009) Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism. Washington Law Review Association, (84), 317-418.

Cook, Elisabeth C. (2008). Do Not Imperil National Security. U.S. News & World Report L.P, 145(4). http://vnwedb.hwwilsonweb.com/hww/results/results_singl_ftPES.jhtml

Lystad, Robert D. (2005) Anatomy of a Federal Shield Law: The Legislative and Lobbying Process. Communications Lawyer. 23(2), 14-25. Retrieved from http://www.spj.org/pdf/shieldlaw.pdf.

McConnell, Mike. (2008). Opposing View: Bill Wrongly Shields Press. USA Today, July 28, 2008. Retrieved from http://blogs.usatoday.com/oped/2008/07/opposing-view-4.html

Reporter's Committee for Freedom of the Press. (2009) Shields and Subpoenas: The reporter's privilege in federal courts. Retrieved December 1, 2009 from http://www.rcfp.org/shields_and_subpoenas.html#taricani

Shafer, Jack. (2008). We Don't Need No Stinkin' Shield Law: The Free Flow of Information Act would be a nightmare for journalists. Slate, April, 16, 2008. Retrieved from http://www.slate.com/id/2189186/

Smith, Kevin. Personal communication, October 12, 2009.

Smith, Kevin. (2009, September 21) Shield Law is Vital to our Democracy. Retrieved September 30, 2009 from http://www.spj.org/news.asp?ref=931

Taricani, Jim. Personal communication, November 16, 2009.

United States House of Representatives. (2009). H. 985: Free Flow of Information Act of 2009. Retrieved from http://www.govtrack.us/congress/billtext.xpd?bill=h111-985

United States Senate. (2009). S. 448: Free Flow of Information Act of 2009. Retrieved from http://www.govtrack.us/congress/billtext.xpd?bill=s111-448