Shield of Armor

The Free Flow of Information of Act pending before Congress would allow journalists, including students, to protect their anonymous sources

WASHINGTON, D.C. -- Student journalists may have the law on their side when promising sources anonymity if a recently introduced federal bill, The Free Flow of Information Act of 2005, passes in the House and Senate.

The bill, also known as the Media Shield Law, was introduced by Congressmen Rick Boucher (D.-Va.) and Mike Pence (R.-Ind.) under H.R. 581 in the House of Representatives on Feb. 2. Similar legislation was introduced by Sen. Richard Lugar (R.-Ind.) under S.B. 340 in the Senate on Feb. 9.

The federal bill promises to “maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information to certain persons connected with the media.” Its main purpose is to protect journalists from being forced to reveal confidential sources and information acquired by them.

According to the legislation, the bill covers any journalist that contributes through newspapers, magazines, book publishing, television networks and stations, cable and satellite networks, channels and programming services, news agencies and wire services to produce news. The bill does not apply to Web site or blog publishers because, according to an analysis on the bill by the American Society of Newspaper Editors, Americans frequently use online forums to exchange various “personal ideas and information.” As the bill does not specify that it applies only to professional journalists, student journalists and other non-professional reporters would appear to be protected as well.

The legislation says that “No federal entity can force a covered person to testify or produce any document in any proceedings or in connection with any issue arising under Federal Law,” unless certain conditions are found by a court to justify compelling the journalist to reveal his or her information.

According to the legislation, the conditions include a court’s finding “that the party seeking the news or information established by clear and convincing evidence that the news or information is critical and necessary to the resolution of a significant legal issue; the news or information could not be obtained by any alternative means; and there is an overriding public interest in the disclosure [of the information].”

If the court finds these conditions are met, the journalist must be notified and given the opportunity to be heard in court before being made to testify.

The bill also says federal entities can only compel journalists to reveal certain kinds of information, such as information needed to verify published facts. In addition, the data can only be used for purposes related to the article’s time frame and subject matter.

A federal entity can never compel a journalist to reveal the identity of a confidential source or information that could “reasonably be expected to lead to the discovery of a source.”

Thirty-one states and the District of Columbia already have shield laws protecting journalists from subpoenas by state and local government agencies and officials.

Of these shield laws, 11 states and the District of Columbia offer journalists absolute privilege, which means that journalists can never be compelled to testify on information or sources. The remaining 20 have a shield law but do not provide absolute privilege.

Boucher said he believes the federal bill will pass because of a “heightened sense of public sensitivity” related to recent news coverage of several reporters who have been subpoenaed to reveal confidential sources, most notably Judith Miller, a New York Times reporter, and Matthew Cooper, a Time magazine reporter, who may serve jail time for refusing to reveal their sources. On Feb. 15, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that no privilege protects journalists from being compelled to disclose their sources before a grand jury. On April 19, a full panel declined to reconsider the panel’s decision, upholding it. Miller and Cooper have one appeal left--the United States Supreme Court.

Marcia Cunningham, senior counsel for the National District Attorneys Association and a former prosecuting attorney, said issuing subpoenas is “standard” for collecting evidence, and said there is no difference between issuing a subpoena to a journalist and issuing one to another person.

“A prosecutor would issue a subpoena to a reporter if they feel that individual has some information or possible information that is important to the case,” Cunningham said. “With anybody, you talk with one person who gives you one version of events and you talk with another person who has a slightly different version. If there’s any way a journalist may have some information [that differs] then a prosecutor might issue a subpoena.”

Danny Craig, a district attorney for the August Judicial Circuit in Georgia, said he has never subpoenaed a journalist during his 27 years as a prosecutor, but agreed with Cunningham.

“I might consider issuing a subpoena to a journalist if I have reason to believe [he or she] is in possession of evidence,” Craig said. “For example, if I were to learn that a defendant has mailed a letter with incriminating or impeaching contents to a newspaper or to a particular reporter.”

Former James Madison University student journalist Christy Jerding knows what it is like to be faced with a court subpoena. In 1992, Jerding, then a senior and editor of her student newspaper, The Breeze, was served with two subpoenas from the Virginia Commonwealth Attorneys Office ordering her to testify about her article in the school paper. The article contained quotes from tape-recorded interviews with two students who had been charged and arrested for distributing cocaine. The subpoenas were thrown out after Jerding, with the help of a lawyer provided by the Student Press Law Center, convinced the court that she had no additional information relevant to the case other than that already published.

Jerding, a former SPLC intern who is now the editorial director for the First Amendment Center in Nashville, said the bill could provide journalists with “a lot of peace of mind” but does not believe it will pass because, she said, the government is “increasingly less sympathetic to First Amendment claims by journalists.”

Jason Kitchen, a former student journalist, also faced the possibility of being forced to reveal confidential information. In 2003, Kitchen, who was then attending New Jersey’s Rowan University as a film student, was served with a subpoena from the state attorney general. The state wanted unedited footage Kitchen had shot of a death row inmate for his documentary, “Fatal Mistakes.” With the help of an ACLU attorney, Kitchen argued that he was protected under the First Amendment’s reporter’s qualified privilege, and the court ruled that Kitchen did not have to turn over his tapes.

Under a qualified privilege, the prosecution must prove that the information they are seeking from the journalist is clearly relevant to a significant point in the case, cannot be obtained from any other source, and in some cases represents a material, important fact that “strikes at the heart of the case,” according to Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.

Kitchen said his initial instinct was to fight the subpoena, but said he felt “overwhelmed” by the situation because of his status as a student journalist.

“As a student, it is very difficult to fight something like this because it is unlikely that you will have the financial means to attain legal representation or solicit legal advice,” Kitchen said. “I felt that if I was unable to find cheap representation, I would be forced to turn over the footage.”

Kitchen, now a graduate student at Michigan State University, added that he thinks a federal shield law may have given his lawyers more leverage in court but would not have prevented his situation, because the state’s shield law did not deter the attorney general from subpoenaing him.

Tom Gayda, president of the Indiana High School Press Association and a regional director for the Journalism Education Association, said the bill will only succeed in protecting student journalists’ rights if the public views them as no different from working professionals.

“All journalists should be treated the same whether they are student or professional,” Gayda said. “The First Amendment contains no qualifiers--nowhere does it state that right is only for professionals. [Journalists] are all given freedom of the press.”

John Bowen, chair of the Journalism Education Association’s Scholastic Press Rights Commission, said he believes the bill could provide more support and protection for student journalists when dealing with confidential sources if students are clearly protected by it. However, Bowen claimed, censorship is more common than student journalists being forced to testify about sources. Even with the bill in place, Bowen believes censorship by school administrators would still prevent student journalists from reporting freely.

“Administrators or other school officials who want to block stories or shut down sensitive reporting use avenues much easier to them,” Bowen said. “While [this bill] could help in theory and practice, scholastic journalists face far more common and destructive practices by administrators who want to control content.”

The bill was referred to Committees on the Judiciary in the House and Senate in February. Committee hearings and votes are expected to be held.

reports, Spring 2005