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The Free Flow of Information Act Comes Rushing Through the House
On October 4, 2007, the Senate Judiciary Committee voted to pass the Free Flow of Information Act, introduced by Reps. Rick Boucher (D-Va.) and Mike Pence (R-Ind.). Less than two weeks later, on October 16, 2007, the act passed the US House of Representatives in what is now seen as one of the biggest bipartisan landslide victories in recent memory.The act upholds reporter shield laws protecting a reporter's right to withhold the identity of confidential sources. Despite the massive bipartisan support(sponsored by 45 Democrats and 26 Republicans), there lies a scattering of underlying anxieties towards the passage.The law gained momentum after the media hysteria surrounding the Valerie Plame scandal, the subsequent subpoenas issued to reporters like Walter Pincus, and the arrest of New York Times reporter Judith Miller. The scandal recalled a history of confidentiality cases reaching as far back as the Branzburg v. Hayes(Pearlstine 51) ruling that prompted the adoption of protective reporter shield laws thereafter in 32 states(Pracene 56), but never on the federal level.
A majority of lobbying organizations and journalists stand behind the newly drafted act for giving journalists a qualified privilege to withhold sources without the risk of being subpoenaed by state and federal courts. The Society of Professional Journalists(SPJ), an organization of up to 10,000 journalists, believes that the passed act upholds the First Amendment - an "extremely important bill for the health of our democracy...[that] will allow the working press...to serve society without fear of reprisal or intrusion from over-zealous prosecutors." Paul Chevigny, a human rights lawyer formerly of the left-wing American Civil Liberties Union, corroborates these claims. "At present under federal law, journalists have no privilege for confidential info at all, except that some courts recognize a qualified privilege in civil actions. For that reason the bill would be a step forward." Paul Chevigny's and the SPJ's sentiments echo the larger breadth of support for the law that sees a reporters right to withhold confidential sources as an encouragement for the kind of investigative reporting that scrutinized the White House during the Plame and Iraq WMD charges. Largely ignored by the SPJ, the act also sets out to define a journalist as a “covered person” engaged in “all forms of media that provide information to the public.” Many organizations, like the Reporters Committee for Freedom of the Press, argue that this vague definition allows federal courts to waiver anyone from the act based on an intention of personal gain not within the interest of informing the public.
Amongst its charges, the committee accuses The Department of Justice amendments that address issues of national security of actually limiting a reporter's right to a qualified privilege. Walter Pincus points out in his article of October 7th, 2007 (“Senate Bill Aims to Define Who Is a Journalist”) that the Foreign Intelligence Surveillance Act of 1978 would be applicable to the Free Flow of Information Act since they both fall under jurisdiction of the Department of Justice. As such, courts could remove the qualified privilege from any agent they deem a foreign power, defined in the 1978 act as “a foreign government or any component thereof, whether or not recognized by the United States.” This could discourage journalists from seeking confidential information from any foreign powers, including agencies like the BBC and non-governmental organizations instrumental in challenging false news reports from American sources(See: "No WMD In Iraq, Source Claims"; "Media Should Follow Up On Civilian Deaths"; "IAEA Reports to the UN Security Council"). The Reporters Committee for the Freedom of the Press argues that the new federal law essentially defines a journalist and thus curtails court power to decide on confidentiality cases. At the same time, it sees a contradiction in that the First Amendment prohibits such a law when it deems that congress shall not pass one regarding a free press in the first place.
The Free Flow of Information Act became a landslide passage in the Senate on October 16, 2007, but that doesn't mean The Reporters Committee for Freedom of the Press sits alone with its anxieties. There are still some journalists like Jay Rosen, NYU Professor and the political blogger behind PressThink, who recognizes that an act like this one should be approached with caution because, “there is a danger...when the government defines who the press is, this becomes a first step to government deciding who can practice journalism.” The act has and will likely continue to spark debates on whether or not such a federal law will limit a free press or encourage reporters to pursue the kind of reporting protected by the First Amendment.
Sources
Pearlstine, Norman. Off The Record: The Press, The Governemnt, and The War Over Anonymous Sources. New York: Ferar, Straus and Giroux, 2007.
Pracene, Ulan C.. Journalists, Shield Laws and the First Amendment: Is The Fourth Estate UnderAttack?.New York: Novinka Books, 2005.
Latest page update: made by HamadAltourah
, Oct 19 2007, 3:38 PM EDT
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