By Christine Tatum | April 30th, 2007
Get busy, people. Broadcast, blog, write — whatever it takes to draw more public attention to the need for a federal shield law.
The Free Flow of Information Act of 2007 is scheduled for reintroduction at 1 p.m. (EST), Wednesday. The U.S. House and Senate bills are identical but subject to last-minute changes. SPJ, one of the nation’s most ardent champions of a federal shield law, will keep you updated as new information rolls in.
Some important/interesting things to note:
The bill’s co-sponsors deserve (really, they do) our thanks. The list of sponsors is growing as I write this, but here are a few legislators to whom I tip my hat:
In the U.S. House — Reps. Rick Boucher (D-Va.), John Conyers (D-Mich.), Mike Pence (R-Ind.), Howard Coble (R-N.C.) (Coble has made this North Carolina native proud) and John Yarmuth (D-Ky.) are co-sponsoring the bill. (A fun fact: Yarmuth is an SPJ member — and the Society’s first member to be elected to Congress).
In the Senate, the bill is co-sponsored by Sens. Richard Lugar (R-Ind.) and Christopher Dodd (D-Conn.).
The Newspaper Association of America asked me to flap my trap on your behalf concerning this issue, and here’s what I told them:
- “Some of the greatest investigative stories of our time — many of them pertaining to the actions of our federal government — have relied on the press’ ability to promise sources confidentiality. SPJ commends legislators who support a federal shield law. They clearly understand that anonymous sources often help build a more informed public, which is better able to hold its elected leaders accountable.”
One of the bill’s chief opponents is the U.S. Chamber of Commerce. Shield supporters have tried to accommodate this group, but the chamber still refuses to support the proposed legislation. Earlier this year, sponsors tried to appease the chamber by adding to the bill exceptions that included the release of significant trade secrets and personal medical or financial information in violation of current law. But the chamber clearly is still not happy.
This is hardly a surprise. Some of the biggest investigative stories of our time have focused on the very bad behavior of business. The corporate elite will do whatever it takes to ferret out a whistleblower (Hewlett-Packard is a poster child for this …). They’ll stop at nothing to unmask employees (past and present) and board members who help to publicly shame them. Ditto for elected officials and government workers who quietly help reporters analyze quarterly reports. Andersen. All of Big Tobacco. Enron. Qwest. Tyco. WorldCom. These are/were among the firms represented by the U.S. Chamber of Commerce.
Journalists conduct a tremendous amount of groundbreaking, business-focused investigations that make folks at the U.S. Chamber of Commerce nervous. But don’t take my word for it. Check out an analysis of business reporting recently published by Gregory Miller, an associate professor at Harvard University’s Business School.
The Free Flow of Information Act of 2007 in both the House and Senate has some changes from the previous versions of the bill introduced in Congress. Among them (as explained by Laurie Babinski of Baker & Hostetler, SPJ’s law firm):
- A change in the standard of evidence that the federal government must show before it is allowed to compel a covered person to provide testimony or produce documents. The previous standard had allowed the government to compel testimony or document production if a court determined by “clear and convincing evidence” that disclosure was necessary under the test set forth in the bill. The new standard has been reduced to a showing by a “preponderance of the evidence.”
- A change in the standard for how important the information sought must be to the successful completion of the matter in which either testimony or documents are sought. In a compromise with the Chamber of Commerce, the sponsors changed the standard that the information sought must be “critical” to the completion of the matter back to “essential” to fall in line with Department of Justice guidelines.
- Additional protection for trade secrets and personal medical or financial information. In another compromise with the Chamber, the new version of the bill dictates that a court must determine by a preponderance of the evidence that, in the case that the testimony or document sought could reveal the identity of a source, that the disclosure of the source’s identity is necessary to “prevent imminent and actual harm to national security,” where disclosure is necessary to “prevent imminent death or significant bodily harm,” or where the disclosure is necessary to identify a person who has disclosed a trade secret, health information, or nonpublic personal information of any consumer in violation of the law.
- A change in the definition of who is covered by the shield law. Earlier this year, we requested that the sponsors broaden the definition of who is covered under the shield law, and they did so by including the words “and information” at our suggestion. As it stands, a “covered person” is defined as a “person engaged in journalism.” Journalism is defined as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news and information for dissemination to the public.” This addition expanded coverage to several categories of people we were concerned had been left out, including book authors. While the bill does not explicitly afford protection to bloggers and other forms of new media – a compromise we made several years back – to the extent a court determines that they are engaged in “journalism,” we expect they will be shielded.