ONA working to ensure federal “shield law” truly protects journalists

Posted in Resources by Jennifer Mizgata

Members and friends,

As you probably have heard, last week the Senate Judiciary Committee passed S. 987, the Free Flow of Information Act (FFIA), with the support of the Online News Association and a coalition of media organizations. FFIA would create a statutory privilege protecting journalists against being compelled to identify confidential sources — a privilege that doesn’t exist under current federal law. Although many heralded the vote as promising new “shield law” protection to journalists, skeptics have expressed a variety of concerns, from the federal government trying to determine who is a journalist, to whether people working in new media would be covered.

We’d like to address these concerns and explain what ONA has been doing to ensure that FFIA will protect journalists, broadly defined, now and for generations to come.

We believe FFIA is a good, if imperfect, piece of legislation that will serve journalists and journalism well. Because the Supreme Court has never interpreted the First Amendment to protect journalists from being compelled to identify confidential sources, the federal government has at times demanded such information. Recent examples of governmental intrusion include the sweeping subpoena of AP phone records, a search warrant for Fox News reporter James Rosen’s phone records, and New York Times reporter James Risen being compelled to testify in a case involving the leak of classified information by a CIA agent. ONA has supported industry efforts to challenge these governmental intrusions, but an effective shield law would prevent governmental overreaching before it occurs. While the Department of Justice recently modified its subpoena guidelines after consulting with a coalition of media organizations including ONA, they remain department guidelines and do not require independent judicial oversight.

Therefore, ONA has been actively involved in a coalition of more than 70 media organizations to encourage enactment of a federal shield law that would align federal law with the shield laws of 48 states and the District of Columbia. Although the privilege created by the Free Flow of Information Act would not be absolute, it would establish clear and reasonable rules and would ensure judicial oversight.

As is nearly always the case with legislation, crafting a federal shield law requires a balancing of competing interests. How can Congress protect journalists against being compelled to identify confidential sources — and thus further the public interest by ensuring the free flow of information — without unnecessarily interfering with the ability of prosecutors, criminal defendants, and civil litigants to call witnesses and prove their cases in court? A bill that granted a privilege not to testify to the tens of millions of Americans who occasionally tweet or post to Facebook would clearly get no traction. A bill that protected only those employed by traditional media companies would be woefully short-sighted.

Our industry rightfully flinches at any attempt to define who is, and by extension who is not, a “journalist.” In our view, a journalist is defined less by the title on his or her business card than by the acts of journalism she or he commits.

To strike this balance, the bill the Senate Judiciary Committee passed last week used the term “covered journalist” to describe who would receive protection. To qualify as a “covered journalist,” the bill requires that:

  • The person is an employee of or freelancer for any service “that disseminates news or information” no matter the mechanism of distribution, including media and technologies not yet invented. This definition is a considerable improvement over previous versions, which listed specific media (newspapers, magazines, radio, TV stations and websites) that would be eligible for protection. The media coalition, with critical input from ONA, recommended this broader definition to ensure that the bill protects not only traditional media and websites, but also mobile applications and “any other news or information service (whether distributed digitally or otherwise).”
  • The person must regularly gather news and information on matters of public interest for the purpose of disseminating that information to the public and must have been doing so at the time he or she gathered information from a confidential source.

This broad and forward-thinking definition properly focuses the question of who will be covered on whether the person was acting as a journalist when gathering the information he or she seeks to protect, and not on trying to define who a journalist is.

Nevertheless, should the definition not be expansive enough, the bill also includes a “safety valve” that gives federal judges the discretion to extend protection to a person who does not meet the above criteria, if a judge finds that such protection “would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.” While it is unclear precisely how “lawful and legitimate” will be interpreted, this safety valve gives judges the flexibility to extend protection under FFIA when they believe circumstances warrant.

We commend Sens. Schumer (D-NY) and Graham (R-SC), the primary sponsors of the bill, and Sens. Feinstein (D-CA) and Durbin (D-IL), who authored the amended definition of “covered journalists,” for their leadership on this critical legislation.

Last week’s action, while significant, is just a step toward seeing FFIA become law. The full Senate still must pass the bill and the House, which has yet to take up a companion measure, also must act. President Obama has expressed support for a federal shield law and would likely sign the Free Flow of Information Act if Congress presents it to him. Although we still have a long way to go, this is the closest we’ve been to passage of a federal shield law since 2009, when a similar bill passed in the House but stalled in the Senate.

We understand this is a complex bill and that you might have other questions. We are eager to hear what you think and what questions you have. Let us know by sending us an email at ffia@journalists.org.

Jim Brady, ONA President
Joshua Hatch, Chair, ONA Legal Affairs Committee
Jon Hart, ONA General Counsel
Jane McDonnell, ONA Executive Director