New shield law revisions. Vote possible Sept. 24.

Despite some damaging changes to the shield law, we continue to support this legislation and hope you will as well. The Senate Judiciary Committee could vote as early as Thursday, Sept. 24. However, it is much more likely to occur on Oct. 1. So there is still time for you to help create a federal shield law.

Dear ASNE member:

We were as disappointed as you were when, despite our earlier belief, S 448, the Free Flow of Information Act, was not voted on by the Senate Judiciary Committee on Sept. 17. We truly believed that the hard work of more than 70 media organizations and companies (including ASNE) would bear the fruit of Judiciary Committee-approved legislation. That didn´t happen, but we´ll continue to fight on and ask you to stay with us.

Our last member alert asked you to urge Judiciary Committee members to vote on and approve an amended version of S 448 that we considered an agreeable compromise between the need for a strong reporter´s privilege and the need to protect national security and law enforcement concerns. Faced with continuing resistance from the executive branch, the Judiciary Committee instead approved another set of “Technical Amendments” that include the following changes:

  • The application of a “reasonable belief” standard to the government´s attempts to break through the qualified privilege that applies in criminal cases. In other words, the government no longer must show that a crime has occurred, that the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution or that, in prosecuting a leak of classified information, that the leak has or will cause significant and articulable harm to national security. It simply must show that it has reasonable grounds to believe these characteristics are present.
  • Removal of a requirement that the information sought via a subpoena issued to a reporter be intended to verify or confirm the accuracy of already published information.
  • Amendment of the definition of “covered person” (the term used to describe a “journalist” who can invoke the privilege) to apply only to someone who is working as a salaried employee of or independent contractor for:
    • an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic or other means and
    • publishes a newspaper, book, magazine, or other periodical,
    • operates a radio or television broadcast station, network, cable system, satellite carrier, or a channel or programming service for such station, network, system or carrier,
    • operates a programming service or
    • operates a news agency or wire service.

We feel this is the most damaging of this newest round of changes. Others have pointed out the effect this will have on freelance reporters who start important reporting or book authorship without having an agreement in place with a defined publication. We fear for student journalists as well. Either way, the addition of this “status” based test to an already-existing “function” based test is something that will leave those fully deserving of a reporter´s privilege out in the cold.

The final copy of the latest amended version of S 448 has not officially been released but we have an unofficial copy available for your review. And a bonus: it´s even got the changes tracked!

Please note that, despite these changes, we believe that the newest version of S 448 deserves passage by the Senate Judiciary Committee and, should that occur, the full Senate. We continue to support this legislation and hope you will as well. The Senate Judiciary Committee has listed S 448 for consideration as early as this Thursday, Sept. 24. However, while the bill could come up for a vote that day, it is much more likely to occur on Oct. 1. So there is still time for you to help create a federal shield law.

As always, you can contact ASNE Legal Counsel Kevin M. Goldberg if you have any questions. He can be reached at 703-812-0462.

Thank you,

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

Redline revisions to S448 (unofficial version)