This article first appeared in the St. Louis Beacon: July 28, 2008 - The Free Flow of Information Act seeks to enact on the federal level the same kind of protection for confidential information that 49 states have recognized either by statute or court decision.
The state shield laws grew out of the 1972 U.S. Supreme Court decision of Branzburg v. Hayes. The court ruled 5-4 that there was no constitutional protection for a reporter to protect a confidential source. One of the reporters in the case, Earl Caldwell of the New York Times, had been allowed by the Black Panthers to listen to hour-upon-hour of internal discussions. A federal prosecutor thought the discussions included evidence of a federal crime; Caldwell refused to appear.
Even though Caldwell and the reporters lost in the Supreme Court, First Amendment lawyers were able to use the decision convince state courts and legislators to pass shield laws. One of the justices in the Supreme Court majority - Lewis Powell - wrote an opaque concurring opinion that the press used to argue that in fact there was constitutional protection for reporters' sources.
Unfortunately for the press, the Judith Miller case came along and the federal appeals court in Washington, D.C., actually reread Branzburg and pointed out that it never recognized the kind of protection that reporters had claimed. Judith Miller ended up spending 85 days in jail protecting vice presidential aide I. Lewis "Scooter" Libby The information she and other reporters provided ended up convicting Libby.
Even though Judith Miller was painted by much of the press as a heroine for going to jail, many First Amendment lawyers thought hers was a bad case for the media. First, Miller had hurt her credibility by writing stories about nonexistent weapons of mass destruction. In addition, the Libby case turned the normal reporter-source situation on its head. Normally, a whistleblower leaks confidentially to a reporter about wrongdoing by the government; in the Miller case, it is arguable that the government wrongdoer (Libby) leaked information to hurt the whistleblower (Ambassador Joseph Wilson, who had criticized the president's justification of the war in Iraq.)
The Bush administration maintains that the shield law will make it easier to disclose national security secrets that could endanger the country. Mike McConnell, director of national intelligence, wrote an oped piece in USA Today arguing that the bill would cripple "the government's ability to investigate and prosecute those who harm national security." A commentary in Wired calls this hyperbole.
Rep. Mike Pence, a conservative Republican from Indiana who is an author of the House version, also has responded to this charge by pointing out that the bill itself contains an exception for national security.
Pence is right about this exception. The bill excepts situations where "in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information by a person with authorized access to such information, such unauthorized disclosure has caused or will cause significant, clear, and articulable harm to the national security."
Judith Miller might not be protected under this standard. The disclosure of the name of an undercover agent could be considered a clear harm to national security.
The bill also says that a reporter who witnesses a crime must testify. That would seem to apply to an Earl Caldwell type case.
Where the bill would help the press is in requiring prosecutors to try to get their information from reporters as a last resort, not a first resort, as some have in recent years with burgeoning numbers of subpoenas. In addition, the government would have to win a balancing test by showing that "nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information."
One other interesting issue is who is a journalist. Initially the bill had not protected bloggers. Now the bill has a broader definition of who is covered. It says it protects "a person engaged in journalism, including their supervisor, employer, parent, subsidiary, or affiliate." The House bill, however, says a person would have to be performing these tasks "for a substantial portion of the person's livelihood or for substantial financial gain" - a test that would exclude many bloggers or citizen journalists. The LA Times had an oped exploring this issue.
Some journalists have argued that there may be more danger in allowing the government to define who is a journalist than there is gain in enabling reporters to stay out of jail. I've made that argument myself in another forum. If you are interested in more on this topic, see a legal paper I wrote on "Publishing National Security Secrets..."