Fixing the Federal Shield Law
The Society for Professional Journalists has for quite some time wanted Congress to pass a law that would give reporters a right to keep their sources confidential. Such a law, commonly referred to as a “shield” law, has obvious advantages from the perspective of the dedicated professionals that collect and disseminate news for the rest of us.
The current shield law making the rounds in Congress is called the Free Flow of Information Act (FFIA). According to FFIA advocates, the bill is essential because it will enable journalists to collect information of essential importance to the public without laboring under the fear that they will one day have to disclose their sources. The thought is simple and appealing: When journalists are able to protect the confidentiality of their sources, the public benefits from the increased access to accurate information that journalists would otherwise be unable to obtain. In this way, shield laws like FFIA are consistent with the free-speech values that undergird our Constitution.
There are some significant problems with the current version of FFIA. One issue is that the law only protects “professional” journalists, that is, journalists who regularly gather news to share with the public for commercial gain. In an era of instantaneous dissemination of information over the Internet by bloggers and other part-time pundits, it’s hard to see why the privilege should be limited to journalists who are getting paid to collect news. If what we care about is getting the most up-to-date, accurate information, why should it matter whether a blogger or a CNN reporter has delivered the news to us? Moreover, even if a meaningful distinction can be made between commercial and non-commercial journalists, in practice granting the privilege exclusively to commercial journalists is likely to spur costly, unnecessary disputes about who is or isn’t a bona fide journalist.
Another issue is that the law, even if carefully crafted, is unlikely to address a key problem for journalists: their uncertainty about when they will be subject to a federal subpoena to provide information needed for a criminal or civil case. The privilege that FFIA grants to journalists is qualified one, which is just a fancy way of saying that in many cases the privilege will not apply because the information sought from a particular journalist is critical in a criminal case or essential in a civil case. Some journalists are probably not too bothered by this, but it tends to undermine the general rationale for having a shield law in the first place. After all, if journalists do not know before collecting news whether they will be hauled before a court or tribunal, then it is unclear how beneficial FFIA will be. Pause on this point for just a moment: FFIA gives courts wide latitude to determine whether a journalist should be subpoenaed to testify because the courts themselves are able under FFIA to determine the importance of the information sought from a particular journalist. This fact alone suggests that in high-stakes cases FFIA might not, in practice, provide the specific kind of protection that journalists would ideally want.
Exacerbating this second problem is the public interest balancing test appearing in the current draft bill. This balancing test requires a court or tribunal to determine whether compelled disclosure is more important than the public interest in gathering or disseminating news or information. While I have nothing against balancing tests in general, this one is patently absurd: Compelling disclosure in a particular instance cannot be meaningfully weighed against the general value placed on gathering or disseminating information. This is so not because information has already at this point been collected and disseminated by the journalist, though that is true enough. FFIA’s balancing test is absurd because the determination of disclosure in a particular instance requires – or should require – a judgment about whether the intrusion into the journalist’s professional life and reputation is justified by the importance of the information sought.
Yet the most significant problem with FFIA in its current guise is the way it treats compelled disclosure of sources in the context of national security. FFIA provides that where disclosure of a journalist’s source is sought:
A court must make a determination that the disclosure is “necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm.”
There are three concerns worth raising here, two easy ones and a third that is quite difficult. First, the last requirement – that the court make a determination to compel disclosure “with the objective to prevent” an act of terrorism – is unnecessary and could lead to protracted legal disputes about whether a federal court or tribunal did in fact have an intention to prevent harm prior to ordering disclosure. Second, if courts must be convinced that disclosing a source is strictly necessary to identify terrorists or prevent future terrorist acts, they may err on the side of not compelling a journalist to divulge a source in contexts when disclosure could have a significant positive impact on our national security interests. In a nutshell, necessity is probably not the right standard here.
The third and most difficult problem is that FFIA nowhere indicates or prescribes how a court, tribunal or federal entity should form its opinion that disclosure of a source would serve our national security interests. To get a handle on why this is a thorny issue, imagine that the original provision in FFIA were rewritten as follows:
When compelling disclosure of a journalist’s source or information that could reasonably be expected to lead to that source, a court must make a determination that disclosure would benefit, enhance, or contribute to efforts of the United States to protect its national security interests.
This modified language, preferable as it is to what currently appears in FFIA, does not provide courts and tribunals with any guidance whatsoever as to what would, in fact, contribute to our national security efforts. This is hardly a surprise, as courts are in the business of applying the law, not protecting national security. Of course, in practice the government entity in charge of prosecuting a given case will provide assistance to the court so that it can grasp the national security interests at stake. And, provided that the government does its job properly, FFIA could be a step in the right direction. But if FFIA is enacted, journalists will be leery of the cozy relationship that will inevitably develop between federal courts and the U.S. government. And reasonably so, I might add, as the U.S. government will be laboring under a constant temptation to overstate the necessity and urgency of learning the identity of sources that may, or may not, have some kind of link with terrorism.
At the end of the day, we need something a little different than FFIA. We need a shield law covering everyone, bloggers and professional journalists alike, that recognizes the need for a flexible compelled disclosure standard in the context of national security.
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