WASHINGTON—An enacted federal shield law would grant journalists more protection from testifying against their sources than revised Department of Justice guidelines, media law experts say.
The Federal Shield Law, also know as the Free Flow of Information Act of 2013, was introduced after a May 2013 revelation that the Justice Department subpoenaed telephone records from the Associated Press in order to investigate leaks about a failed al-Qaida plot. In another instance, the Justice Department used a search warrant to read a Fox News reporter’s emails.
The legislation, sponsored by Sen. Charles Schumer, D-N.Y.,would allow journalists to challenge the mandate to testify against their sources in an investigation. The Senate Judiciary Committee passed the bill in September 2013, and the legislation has not yet been discussed on the Senate floor. The House legislation, sponsored by Rep. Ted Poe, R-Texas, has 47 co-sponsors.
“We’re closer than we’ve ever been before to passing a strong and tough media shield bill,” Schumer said in September 2013 news release. “Thanks to important bipartisan compromises, we’ve put together a strong bill that balances the need for national security with that of a free press. This legislation ensures that the tough investigative journalism that holds government accountable will be able to thrive.”
But media rights and civil liberties groups are urging the Senate to pass the bill, because if the bill becomes a law, the journalists will have clearly defined protections that is uniform under federal and circuit courts in the U.S.
Over the years, media protections have evolved separately across many different courts. Since the 1970s, the Supreme Court ruled journalists could very minimally refuse to testify against a source, said Sophia Cope, the director of government affairs/legislative counsel for the Newspaper Association of America. The only statutes the journalists could rely on was their first amendment right or the federal common law, which is a fairness clause for attorney-client relationships, she said. Because of this, different circuit court districts created differing rules over the years for journalists and sources in investigations, she said, some of which granted journalists more protection than others.
“Basically because all the federal appeals courts have created these different levels of reporters privileges protection, a federal shield law would be the preferred law to rely on in all circuits and all federal trial courts,” Cope said. “They can refer to shield across all courts regardless of circuit.”
Cope added this law would give journalists more protection than the revised Department of Justice media policies. It is up to the Attorney General to create guidelines for the Justice Department to use to obtain records from media organizations, and different attorney generals may write or enforce guidelines differently.
“The guidelines are just guidelines,” Cope said. “ There’s really no meaningful form of discipline…It really is just basically a voluntary DOJ policy. If Congress makes it a law it would have that across the board effect. That’s why we are continuing to advocate for a federal shield law.”
The Justice Department released a draft of their revised media policies in July 2013, and in January 2014 announced the guidelines will be finalized, meaning they have been sent to the Federal Registrar.
“These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures,” Holder said in a July 2013 news release. “While these reforms will make a meaningful difference, there are additional protections that only Congress can provide. For that reason, we continue to support the passage of media shield legislation.
According to the guidelines, the government must notify the journalist before the subpoena is issued. If the attorney general determines advance notification would present a serious threat to the investigation, a national security risk or a risk injury to law enforcement officers, he may delay notification for up to 45 days.
This revision began simultaneously with the introduction of the Federal Shield Law, after the revelation of the Justice Department’s subpoena for records from the Associated Press. President Barack Obama demanded Attorney General Eric Holder to revise the policies for obtaining such information. The Justice Department policies have not been updated since 1980.
The revised Justice Department policies center more around the promise that the government will inform the news organization that it plans to subpoena their records, said Cynthia Gierhart, the Ethics & Excellence in Journalism Fellow at the Reporters Committee for Freedom of the Press.
“With the DOJ guidelines…it’s talking about whether or not a journalist is notified if a third party is subpoenaed for phone records,” Gierhart said. “Before the DOJ guidelines, the journalist would not get notice at all unless it was deemed purpose that they could. The revised guidelines (say) that journalists should always have this notice.”
Gierhart added the Federal Shield Law includes this rule as well, and there are many similarities between the law and the guidelines but with different focuses.
“When we talk about shield law, we are referring more to the direct: a journalist interviewed someone and now they are being charged with a crime and want to interview/testify the journalist,” Gierhart said. “In a broader sense, for a journalist having anonymous sources, it’s important for their job as their day to day role as watchdogs for the government. They need to rely on sources that can speak freely without fear.”
In the aftermath of its subpoenaed records, the AP President and CEO Gary Pruitt said his reporters were having trouble talking to any government sources, even if their stories had nothing to do with national security.
“In one instance, our journalists could not get a law enforcement official to confirm a detail that had been reported elsewhere,” Pruitt said in a statement to the National Press Club in June. “Imagine: officials were so fearful of talking to AP they wouldn’t even confirm a fact that had already been reported by numerous other media. And I can tell you that this chilling effect on newsgathering is not just limited to AP. Journalists from other news organizations have personally told me that it has intimidated both official and nonofficial sources from speaking to them as well.”
The shield law and the guidelines have their limits, Cope added. The Justice Department guidelines only apply to federal prosecutors, and the Federal Shield Law applies to federal prosecutors and grand juries. These rules do not apply to special prosecutors. Also, a news organization will not have advanced notice of a subpoena if there is “a clear and substantial threat to the integrity of the investigation, risk grave harm to national security or present an imminent risk of death or serious bodily harm,” the guidelines state. The Shield Law states exceptions to the notification when “information would prevent or mitigate an act of terrorism or harm to national security” in classified leak cases and “identify a perpetrator of, an act of terrorism or harm to national security” in other information cases.
“The Federal Shield Law not absolute privilege,” Cope said. “There is a series of standards that have to be met. But in the end its a balancing effect. It’s an opportunity for them (journalists) to go before the judge and argue for public interest for him (the journalist) to protect his source.”
