The Newspaper Association of America is urging the Senate to bring a shield law bill to the floor for a vote after the Supreme Court Monday declined to review New York Times' journalist James Risen's appeal of a court ruling that he had no right to refuse to reveal confidential sources.
The Free Flow of Information Act has twice passed the House, only to get bogged down in the Senate. But a Senate version passed out of the Judiciary committee for the first time last fall in the shadow of the NSA information-gathering revelation, attendant WikiLeaks government data drops and Justice's subpoenas of reporter phone records, leading to hope that a federal shield law—to match that in 49 states—might finally pass.
Risen reported on a bungled CIA plot against Iran's nuclear program based on confidential sources, which he refused to divulge to the Justice Department after he was subpoenaed as part of an investigation into the leak. The U.S. Court of Appeals for the Fourth Circuit ruled against Risen, but NAA points out that even in doing so it called on Congress to create a shield law.
"The actions of the Department of Justice against Risen, as well as the May 2013 revelations that the agency secretly obtained communications records of Fox News and Associated Press reporters, has had a profound and chilling effect on journalism in this country,” said NAA president Caroline Little in a statement following the Supreme Court decision to deny cert. “It is now time for Congress to respond to the judicial branch’s call for clarity and enact clear rules for when a confidential source can be protected under federal law.”
The Society of Professional Journalists agreed that the time for legislative action is now.
“This illustrates, in concrete terms, why Congress should move quickly,” said SPJ President David Cuillier in a statement. “Ultimately, this isn’t about protecting Risen or other journalists. It is about protecting the ability for Americans to receive the information they need to adequately self-govern.
“We encourage all journalists and citizens to immediately contact their members of Congress to urge passage of the shield law,” Cuillier said. “With so many pressing issues in the nation today — NSA wiretapping, Veterans Affairs, health care financing and more — we must ensure a free flow of information for the public to know what is going on," he said.
The Free Flow of Information Act (S.987) is sponsored by Sens. Charles Schumer (D-N.Y.) and Lindsey Graham (R-S.C.), and was pushed for years by the late Pennsylvania Republican (and former Democratic) Senator Arlen Specter. It would protect reporters from being forced to identify sources by overzealous government officials, with carveouts for national security, imminent threat of death or bodily harm, destruction of critical infrastructure, and other special circumstances. The bill also covers government efforts to obtain information from ISPs.
The Franklin Center for Government and Public Integrity joined NAA's call for swift action, but not its backing of the Free Flo of Information Act. "The Supreme Court’s decision to reject the appeal of New York Times reporter James Risen is yet another compelling reason for Congress to take action on an effective media shield law," said Jason Stverak, president of the Franklin Center.
"Although Risen should be protected as a journalist under the First Amendment, it’s increasingly clear that the nation’s highest court will not protect journalists like Risen from harassment, subpoenas, and the threat of jail time, simply for doing their job and upholding the ethical standards of the profession...A federal shield law would codify the confidential relationship between a reporter and a source, and prevent the government from forcing the reporter to disclose sources in a public court."
Stverak called the act "an ineffectual, toothless piece of legislation that would only create arbitrary divisions within the reporting community."
It doesn't like the fact that the law would apply to a specific set of journalists recently employed by an established news agency. "A true media shield law...would protect all those who engage in the activities of journalism with the intent to publish--regardless of their employment status." But any looser definition would likely threaten the bill's chances for passage, since who the bill should cover has been a subject of vigorous debate and negotiation.
Elsewhere on the shield law front, the House Appropriations Committee last week passed a Justice appropriations bill that included an amendment blocking the funding of any effort to compel journalists to reveal confidential sources. If that passed in the Senate, too, it would be a defacto shield law, though short of an explicit protection in law.
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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