[T]he potential chilling effect occasioned by the current state of affairs in the federal courts cannot be overstated. The ongoing drum beat of subpoenas, coupled with the lack of clear guidance concerning the recognition and scope of a reporters’ privilege in the federal courts, has impaired the ability of the American public to receive information about the operation of its government and the state of the world in which we live. There is, therefore, now a palpable need for congressional action to preserve the ability of the American press to engage in the kind of important, public-spirited journalism that is often possible only when reporters are free to make meaningful commitments of confidentiality to their sources. — Lee Levine
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Committee: Joint Hearing of the Subcommittee on Intergovernmental Affairs and the Subcommittee on Healthcare, Benefits, and Administrative Rules of the United States House of Representatives Committee on Oversight and Government Reform (video of hearing here)
Date: 24 July 2018
- In November 2017, Rep. Jamie Raskin (D-MD) and Rep. Jim Jordan (R-OH) introduced the Free Flow of Information Act to protect the exercise of freely reporting critical information to the American public by establishing federal protection from compulsory disclosures for journalists.
- Most states have enacted laws to shield journalists from being compelled to reveal their confidential sources. However, this patchwork of protection at the state level does not fully protect journalists as the federal government increasingly seeks to seize records belonging to journalists.
The Free Flow of Information Act would for the first time enshrine a journalist-source protection into federal law. It would prevent journalists or news organizations from being forced to reveal to the government any sources or documents related to their investigations.
Such information could only be compelled under subpoena if several separate conditions are all met:
- The federal government can prove it has exhausted other options for obtaining the information.
- The information sought is “critical” to the investigation at hand, rather than tangential.
- “The public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”
This last requirement in particular is subject to considerable interpretation on the part of the judicial system. It’s possible — even likely — that certain courts or judges would almost always rule in favor of the government rather than news organizations, even if this bill became law.
So how would that work in the real world? Take the famous example of the NYT’s Miller from 2005, who was imprisoned for refusing to reveal her source in a grand jury case investigating the leak of the identity of an undercover CIA officer. Presumably Miller would have been significantly less likely to have been jailed under this law, with its much higher burden of proof.
But as even the bill’s sponsors concede, it’s almost impossible to say she “wouldn’t” have been jailed, as a court may still have ruled that the public interest in compelling disclosure may have outweighed any other considerations.
Wittnesses & Testimonies