33 States plus the District of Columbia have some form of shield law to protect the forced disclosure of information obtained by journalists, but there are no such protections when it comes to federal court. That may be change soon, but will the law be strong enough to actually protect journalists or will its broad exceptions do more to hurt press freedoms than help them?
The House of Representatives is expected to vote on The Free Flow of Information Act of 2007 (HR 2102)
later today. When the bill was first introduced in May, it was not without its weaknesses, but it's broad definition of who was covered under the bill and its limited exceptions made for a robust bill that I could easily support.
By August the bill had been amended
to refine who would and wouldn't qualify as a journalist. The new language stated that only those who who derive "financial gain or livelihood" from their journalistic activity would be covered. Journalism students would no longer be covered, nor would many bloggers. It's important to note, that though these changes were finalized in August, as cpmaz
reports, the revised bill wasn't posted online until October 10.
Since then, two more amendments
have been introduced that will further erode the bill. One introduced by Representative Boucher (VA) and Pence (IN) (sponsors of the original bill) adds that the journalist must depend on his craft for a "substantial
portion of the person's livelihood or for substantial
financial gain" (emphasis is mine). I don't know what the definition of substantial financial gain, but there are countless journalists who must rely on other work to supplement their income after entering the professional world. In fact, the Society of Professional Journalists
continues to offer student membership rates for two years following graduation for this very reason.
The other amendment
was submitted by Representative Smith (IN) and threatens to undermine the bill even further. According to the summary
of the amendment, "It would delete the public interest balancing test. It would delete the provision permitting access to source information to prevent imminent death and replace it with a provision regarding prevention of criminal misconduct."
Both amendments were expected to be decided in a meeting of the rules committee last night, but I have been unable to locate the outcome of the meeting online. According to the Rules Committee
, it appears that Boucher's amendment was adopted wheras Smith's was not but I have not been able to confirm this to be true.
In addition, the Senate version of the bill has also gone through it's own evolution. That bill will only provide protection when there is an explicit promise of confidentiality and anonymous sources.
If both bills pass, then a conference will be formed to unify the two bills. With the exceptions and narrow definitions in each version of the bill likely to be incorporated into the final version of the law, the shield law will not protect anything but confidential source material and only cover those who make their livelihood from journalism. Not only would students not be protected but even those covered are only protected under very limited circumstances.
It seems to me that in the process of codifying these protections, the law is almost a tacit endorsement for the use of of journalists as an investigative arm of the government and defines journalism, not as an act, but as an occupation. In doing so, the law doesn't serve to protect the public's right to know but instead it protects the journalists right to conduct business.
At the SPJ conference earlier this month, I heard people speak of how this limited law would be better than nothing -- as if we can somehow pass a stronger law later on. The success of this law has only been made possible through those journalists that have gone to jail to assert this right. A stronger law would only surface if another blogger goes to jail to protect his or her right to information that isn't patently confidential and we don't need to fight that battle again.
While I do feel that there is an urgent need for a Federal Shield Law, I'm fearful that if this law goes through that our press freedoms will actually be worse off than they are right now. My case seemed to rely on a sliver of light peering out of the door of a concurring opinion in the 1972 Supreme Court case Branzburg v. Hayes, along with a few other cases, and a wing and a prayer. It wasn't a lot to go on, but at least it wasn't excepted from an existing shield law. I'm deeply afraid that my case and others that will follow would be worse off if the most narrowly tailored and limited combination of the two bills become law.
For these reasons, I simply can't offer my support of the Free Flow of Information Act of 2007. We do need a Federal Shield Law, more than ever, but we need good laws not watered -down legislation that provides very limited protections to a narrow category of journalists.