New version of shield law could be voted on Sept. 17

The Senate Judiciary Committee intends to bring a new version of S 448 up for a vote Thursday, Sept. 17. We expect that those opposed to the concept of a federal shield law will introduce hostile amendments.

Many of you responded on very short notice to our earlier member alert regarding a possible Senate Judiciary Committee vote on the Free Flow of Information Act on Sept. 10. Those of you who wrote about this issue in your papers on Thursday or who contacted your senator prior to the vote deserve a hearty “Thank You” for your swift and strong response. If you were not able to act in response to our member alert, you have another chance.

The Judiciary Committee passed a “Manager's Amendment” on Thursday but did not report the final bill out of committee. This Manager's Amendmentis the product of an ongoing series of discussions among the media groups supporting this bill and the administration and Senate Judiciary Committee. It is intended to respond to administration officials and Judiciary Committee members who generally support a federal shield law but held reservations about supporting S 448 as introduced. In fact, at yesterday's executive business meeting, Senate Judiciary Committee Chair Patrick Leahy said that he would sign on as a co-sponsor of this substitute bill.

The Manager's Amendment is in the nature of a full substitute for the previous version of S 448. We support this new version and hope that you will publicly do the same. We are making available a “redlined” copy of the new S 448 but want to highlight the key changes:

  • Amending the Section 3 exception to the privilege so that it only applies where the reporter has observed a criminal act .
  • Amending the separate Section 5 exception to the privilege to allow the government to compel testimony or production of documents where, in addition to being necessary to prevent an act of terrorism or other significant and articulable harm to national security, it is necessary to mitigate or identify the perpetrator of such harms. But the exception now only exists where the testimony or documents will materially assist in such prevention, mitigation or identification.
  • Section 6 has been amended to clarify the procedure for notifying a reporter or media entity that its telephone, e-mail or other electronic records have been subpoenaed from its communications service provider.
  • New procedures for timely and expedited review or appeal of the applicability of this privilege have been created in Section 8.
  • The definition of a journalist has been amended to make it more “functional” in nature, looking at whether the person invoking the privilege has truly acted as a journalist. This language relies on a 1987 decision of the United States Court of Appeals in the case of Von Bulow v. Von Bulow that has proven both acceptable to news media and workable for courts.
  • The exceptions to “covered person” found in Section 10(2), which define who cannot invoke the privilege due to a connection with terrorist activities or entities, have been broadened.

We understand that the Senate Judiciary Committee intends to bring this new version of S 448 up for a vote next Thursday, Sept. 17. So there is still time to express your support for the Free Flow of Information Act, either in writing or through more personal contact with your senator (especially if he or she is on the Judiciary Committee). Because we expect that those opposed to the concept of a federal shield law will introduce hostile amendments — perhaps dozens of them — at Thursday's markup, we especially urge you to let these senators know they should vote against any amendments that will further weaken S 448. We especially fear attempts to strip the “public interest balancing test” from Sections 2(a)(3) and Section 5(2). The Free Flow of Information Act has been amended to its current form to address the national security and other concerns that have been raised, thoroughly discussed, and appropriately resolved.

Please do not hesitate to contact ASNE Legal Counsel Kevin M. Goldberg (ph: 703-812-0462) if you have questions about S 448.

Thank you,

Andy Alexander
Tim Franklin
ASNE Freedom of Information Committee Co-Chairs