Congress Considering Reporter Shield Law – Some Want It to Shield Bloggers Too

     Should Congress adopt a "shield law" for reporters?  Should the new law protect bloggers, too?

     On March 31, 2009, the House of Representatives passed H.R. 985 (the link is to the relevant page at OpenCongress.org), the "Free Flow of Information Act of 2009,"  introduced by Rep. Rick Boucher (D-VA).  If enacted this law would protect professional journalists from having to disclose information or turn over documents to federal authorities except in limited circumstances.  The House bill differentiates between two types of situations.  Where there is no confidential source or where the authorities are not seeking information that could lead to the discovery of a confidential source, the journalist would have to disclose information or produce a document in the journalist's possession if it is "critical to the investigation or prosecution" of a criminal case or "critical to the successful completion" of a civil case.  In situations where police, prosecutors, or the courts want information about a confidential source or that could lead to the discovery of the identity of a confidential source, the journalist could be required to divulge the information only in four limited situations: (1) cases involving terrorism; (2) to prevent imminent death or significant bodily harm; (3) cases involving the disclosure of trade secrets, health information, or confidential consumer information; and (4) cases involving the disclosure of classified information. 

     The House bill only extends protection to professional journalists.  The relevant portion of H.R. 985 provides:

The term 'covered person' means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

     Senator Spector (D-PA) offered a similar measure, S. 448, which as originally introduced would have covered all persons engaged in "journalism," whether or not they earn a  living at the craft.  This version of the bill contained a much broader definition of "covered person:"

The term 'covered person' – (A) means a person who is engaged in journalism; (B) includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A).

The term `journalism' means the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

     On November 19 the Senate Judiciary Committee amended S. 448, but as noted in an entry by Kos on December 2, 2009, the amended version of the Senate bill still does not require that the "covered person" be employed as a journalist – but it does tighten the definition to require that the person must either "conduct interviews," "make direct observations of events," or "collect, review, or analyze … original writings … or information" in any form.  The amended version of the Senate bill also limits the journalist privilege only to protect confidential sources.  Kos warns that Senators Dianne Feinstein (D-CA) and Rick Durbin (R-IL) wish to amend the Senate bill so that it protects only persons who earn a livelihood as journalists.  Kos concludes his entry with this appeal:

Note — this isn't about me. I'm a salaried writer. This amendment wouldn't exclude me. This is about most of you, and countless bloggers and writers who do their own brand of journalism because they believe in their cause, not just because it's a gig.

Feinstein and Durbin want to relegate you to second-class status in favor of the old media dinosaurs bleeding themselves dry. This is unconscionable. Protect the act of journalism, not people who fit the government's definition of "journalist".

     I agree with Kos that bloggers should be treated the same as professional journalists.  I would go even further in the quest for equality and require both groups to be treated like every other citizen.  I think that there should be no "reporter's privilege" in criminal cases.  Any person who has knowledge of a crime has a duty to disclose that information to the authorities, and at a minimum that person may be compelled to disclose that knowledge.  There should be exceptions to that rule only in cases where the Constitution creates a privilege not to disclose or testify.  The defendant's right to silence is expressly guaranteed by the Fifth Amendment, and the priest-penitent privilege must be respected pursuant to the Free Exercise Clause of the First Amendment.  The attorney-client privilege is probably a necessary precondition for securing effective representation and a fair trial, and so is mandated under the Fifth and Sixth Amendments of the Bill of Rights.

     While Presidents Richard Nixon and George W. Bush made broad claims to executive privilege, I never have been convinced that Presidents have any constitutional authority to prevent their aides from testifying in criminal cases, despite the Supreme Court's recognition of a "qualified executive privilege" in the case of United States v. Nixon.  Other privileges that have no grounding in the Constitution should be inapplicable in criminal cases.  The doctor-patient privilege and the spousal privilege are simply not justified in that setting.  The right of the people to learn the truth in criminal cases outweighs the importance of preserving confidentiality in all of these situations. 

     The First Amendment does not protect against the disclosure of a journalist's "confidential sources," and Kos' essay demonstrates why this is so.  What differentiates the confidential sources of a reporter as compared to the confidential sources of any citizen?  If I am questioned by the police or in court, and I am asked how I obtained certain information about the commisssion of a crime, I cannot avoid answering by saying "I refuse to answer because I promised the person who told me about this that I would never disclose his identity."  Freedom of the Press stands on no higher ground than Freedom of Speech.  Kos' argument proves too much.  The law is presumptively entitled to every person's evidence.

Professor Huhn has taught Constitutional Law at The University of Akron School of Law for over 25 years.  You may access his website on constitutional law for materials relating to his course as well as links to other sources of information on constitutional law.

Tagged as: arlen specter, constitution, evidentiary privilege, First Amendment, free flow of information act of 2009, h.r. 985, journalists privilege, reporter's privilege, rick boucher, s. 448, Senate Judiciary Committee