The Free Flow of Information Act is a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process.
While numerous U.S. states have
shield law
A shield is a piece of personal armour held in the hand, which may or may not be strapped to the wrist or forearm. Shields are used to intercept specific attacks, whether from melee weapon, close-ranged weaponry or projectiles such as arrows, ...
s, the federal government has no such law. The bill is an effort to enact a shield law at the federal level.
The bill was introduced to the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
by Sens.
Richard Lugar
Richard Green Lugar (April 4, 1932 – April 28, 2019) was an American politician who served as a United States Senator from Indiana from 1977 to 2013. He was a member of the Republican Party.
Born in Indianapolis, Lugar graduated from De ...
and
Chris Dodd
Christopher John Dodd (born May 27, 1944) is an American lobbyist, lawyer, and Democratic Party politician who served as a United States senator from Connecticut from 1981 to 2011. Dodd is the longest-serving senator in Connecticut's history. H ...
in 2007.
It was proposed in its current form by Sen.
Arlen Specter
Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican from ...
.
In October 2007, the Free Flow of Information Act was passed by the
United States House of Representatives
The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the Lower house, lower chamber of the United States Congress, with the United States Senate, Senate being ...
. However, it was filibustered (failed cloture) on Jul 30, 2008, and withdrawn.
[
In the 2007-08 Senate version, it would not act as an unqualified immunity for journalists. Instead, federal judges would be allowed to declare certain news stories as having a public interest based on information obtained from confidential sources during the newsgathering process.
More than 50 media companies and organizations support the bill. The ]administration
Administration may refer to:
Management of organizations
* Management, the act of directing people towards accomplishing a goal
** Administrative assistant, Administrative Assistant, traditionally known as a Secretary, or also known as an admini ...
of President
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*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
opposed it.
Speaking to the Associated Press
The Associated Press (AP) is an American non-profit news agency headquartered in New York City. Founded in 1846, it operates as a cooperative, unincorporated association. It produces news reports that are distributed to its members, U.S. newspa ...
annual meeting in Washington, D.C., on April 14, 2008, Senator John McCain
John Sidney McCain III (August 29, 1936 – August 25, 2018) was an American politician and United States Navy officer who served as a United States senator from Arizona from 1987 until his death in 2018. He previously served two terms ...
, the 2008 Republican nominee for president, said "Despite concerns I have about the legislation, I have narrowly decided to support it."
There are fears, however, that the act may be adopted in such a way as to exclude people who are not "professional" journalists, which would in turn serve to effectively shut down investigative reporting by small and independent media sources.
In July 2013 the White House
The White House is the official residence and workplace of the president of the United States. It is located at 1600 Pennsylvania Avenue NW in Washington, D.C., and has been the residence of every U.S. president since John Adams in 1800. ...
was pushing for a federal media shield law, the Free Flow of Information Act, authored by U.S. Senators Charles Schumer
Charles Ellis Schumer ( ; born November 23, 1950) is an American politician serving as Senate Majority Leader since January 20, 2021. A member of the Democratic Party, Schumer is in his fourth Senate term, having held his seat since 1999, and ...
and Lindsey Graham
Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee ...
. Under the bill, the scope of protection for reporters would vary according to whether it was a civil case, an ordinary criminal case or a national security case. The greatest protection would be given to civil cases, in which litigants seeking to force reporters to testify or trying to obtain their calling information would be required to show why their need for the information outweighed the public's interest in unfettered news gathering. Ordinary criminal cases would work in a similar fashion, except the burden would be on the reporter seeking to quash the subpoena to show by a "clear and convincing" standard that the public interest in the free flow of information should prevail over the needs of law enforcement. Cases involving the disclosure of classified information would be more heavily tilted toward the government. Judges could not quash a subpoena through a balancing test if prosecutors presented facts showing that the information sought might help prevent a terrorist attack or other acts likely to harm national security. The legislation would create a presumption that when the government is seeking calling records from a telephone carrier, the news organization would be notified ahead of time, allowing it to fight the subpoena in court. But the bill would also allow the government to seek a 45- to 90-day delay in notification if a court determines that such notice would threaten the integrity of the investigation. The legislation would also include an exception where journalists could be subpoenaed if it means national security is at risk.
References
{{Reflist
External links
Journalists’ Privilege: Overview of the Law and Legislation in Recent Congresses
Congressional Research Service, January 19, 2011
Legislative History: Free Flow of Information Act of 2009 (with links to key documents)
Freedom of information in the United States
Journalism in the United States
Sources (journalism)