Digital Media and Data Privacy Law Blog

The right of journalists to refuse to testify regarding information or sources obtained as part of the news-gathering process, known as the reporter’s privilege, has been recognized by 49 of the 50 states and the District of Colombia. However, these existing protections are only applicable in state court. Federal law offers no statutory reporter’s privilege, leading to high-profile federal court cases in which a journalist is forced to choose between revealing confidential sources or spending time in jail for contempt of court.

The most prominent recent example is the case of New York Times reporter James Risen, who wrote a book detailing the CIA’s effort to disrupt Iran’s nuclear program. The federal government sought to compel Risen’s testimony regarding his sources. The Fourth Circuit Court of Appeals ordered Risen to testify, and on June 2, the Supreme Court refused to hear Risen’s appeal. If the government does not withdraw its subpoena, Risen must testify or face jail time.

These events underscore the renewed calls for a federal “shield law” which would recognize a reporter’s privilege in federal cases. In late May, Rep. Alan Grayson (D-Fla.) proposed an amendment to an appropriations bill for the United States Justice Department and other agencies. The amendment states that none of the funds made available by the appropriations bill may be used to compel a journalist to testify about information or sources the journalist regards as confidential. The amendment passed with bipartisan support, and the appropriations bill itself passed the House. If the amendment survives Senate scrutiny and is enacted into law, it would apply to the Justice Department and federal prosecutors. But the amendment leaves some critical issues unaddressed. Specifically, it does not contain an exception for matters with potentially serious national security consequences, and it does not define who can claim protection as a “journalist.”

The House is not alone in contemplating how to recognize the reporter’s privilege. A Senate bill (S. 987) introduced in May 2013, referred to as the Free Flow of Information Act, passed through the Judiciary Committee in September. However, no subsequent action has been taken to bring the bill to the floor of the Senate for a vote, as there may not currently be sufficient support for the bill to pass (or survive a possible filibuster attempt).

The Senate bill is substantially more detailed than the House amendment to the appropriations bill. It would generally prevent federal entities from demanding a “covered journalist” comply with a subpoena or court order seeking to force the disclosure of protected information. The government still would retain the ability to compel disclosure when it is necessary to prevent certain consequences (death, kidnapping, substantial bodily harm, terrorist activities, or “significant and articulable harm” to national security). To invoke the protection of the proposed law, a journalist must have promised or agreed to keep the information in question (or the source of such information) confidential, and the information must have been obtained for the purpose of “engaging in journalism.” In the wake of revelations that the Justice Department secretly obtained communications records of Associated Press and Fox News reporters, the bill would also generally prevent the federal government from seeking similar information from journalists’ service providers.

The question of who is eligible to invoke the reporter’s privilege has been a significant issue during previous attempts to draft a federal shield law. Reporters have been concerned that any attempt to define a “journalist” could potentially lead to future government interference, including licensing of journalists. While the Society of Professional Journalists and Newspaper Association of America have acknowledged this issue, the organizations consider the Senate bill’s current definition of a “covered journalist” broad enough to merit support. Those eligible to invoke the privilege under the Senate bill would include college journalists, freelancers, bloggers, anyone working for a “news website,” and most anyone else who is gathering information with the intent to disseminate it in a public manner (as well as traditionally-employed print and broadcast reporters). It would, however, exclude certain groups like Wikileaks, whose principle function is merely to publish primary source documents that were disclosed without authorization. Importantly, the bill also would grant judges broad discretion to extend the reporter’s privilege to any party when doing so is “in the interest of justice,” helping ensure the law would be flexible enough to cover new and emerging media practices.

The impact the proposed law would have on cases like that of Risen is a point of considerable debate. This is particularly true with respect to the national security exception in the bill, which would allow the government’s interests to trump the reporter’s privilege in matters with national security implications. The language of the bill indicates that the government may only use the exception if the information being sought is intended to prevent a future act of terrorism or future harm to national security. Under this standard, a court could find that the identity of a source of years-old leaked information is not needed by the government to prevent such future harm. However, SPJ president Sonny Albarado has said he believes courts are so sensitive to the federal government’s national security interests that even the language of the Senate bill would not have been sufficient to protect Risen from being compelled to divulge sources. Despite these concerns, a host of professional journalism organizations, including Albarado’s SPJ, have backed the bill, believing its protections are a substantial upgrade over the current federal court climate faced by reporters.

While Sen. Chuck Schumer (D-N.Y.) stated in March that he believes it is “very likely” a shield bill will pass the Senate this year, the lack of recent movement has some observers skeptical. On June 11, 75 media companies and journalism organizations sent an open letter to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.), urging both to schedule a floor vote on the bill as soon as possible. Professional organizations, such as SPJ and the NAA, have called for members and others to contact undecided senators to convey interest in the bill’s passage.

The attention surrounding the Risen case has brought a renewed focus to years-old calls for meaningful federal recognition of a reporter’s privilege. This is an issue that warrants the attention of all journalists.

Editor's note:  Brooks Pierce summer associate Patrick Southern played a primary role in drafting this post.