Shield of Armor

WASHINGTON, D.C. — Student journalists may have the law ontheir side when promising sources anonymity if a recently introduced federalbill, The Free Flow of Information Act of 2005, passes in the House andSenate.

The bill, also known as the Media Shield Law, was introduced byCongressmen Rick Boucher (D.-Va.) and Mike Pence (R.-Ind.) under H.R. 581 in theHouse of Representatives on Feb. 2. Similar legislation was introduced by Sen.Richard Lugar (R.-Ind.) under S.B. 340 in the Senate on Feb. 9.

The federalbill promises to “maintain the free flow of information to the public byproviding conditions for the federally compelled disclosure of information tocertain persons connected with the media.” Its main purpose is to protectjournalists from being forced to reveal confidential sources and informationacquired by them.

According to the legislation, the bill covers anyjournalist that contributes through newspapers, magazines, book publishing,television networks and stations, cable and satellite networks, channels andprogramming services, news agencies and wire services to produce news. The billdoes not apply to Web site or blog publishers because, according to an analysison the bill by the American Society of Newspaper Editors, Americans frequentlyuse online forums to exchange various “personal ideas andinformation.” As the bill does not specify that it applies only toprofessional journalists, student journalists and other non-professionalreporters would appear to be protected as well.

The legislation says that“No federal entity can force a covered person to testify or produce anydocument in any proceedings or in connection with any issue arising underFederal Law,” unless certain conditions are found by a court to justifycompelling the journalist to reveal his or her information.

According to thelegislation, the conditions include a court’s finding “that theparty seeking the news or information established by clear and convincingevidence that the news or information is critical and necessary to theresolution of a significant legal issue; the news or information could not beobtained by any alternative means; and there is an overriding public interest inthe disclosure [of the information].”

If the court finds theseconditions are met, the journalist must be notified and given the opportunity tobe heard in court before being made to testify.

The bill also says federalentities can only compel journalists to reveal certain kinds of information,such as information needed to verify published facts. In addition, the data canonly be used for purposes related to the article’s time frame and subjectmatter.

A federal entity can never compel a journalist to reveal theidentity of a confidential source or information that could “reasonably beexpected to lead to the discovery of a source.”

Thirty-one states andthe District of Columbia already have shield laws protecting journalists fromsubpoenas by state and local government agencies and officials.

Of theseshield laws, 11 states and the District of Columbia offer journalists absoluteprivilege, which means that journalists can never be compelled to testify oninformation or sources. The remaining 20 have a shield law but do not provideabsolute privilege.

Boucher said he believes the federal bill will passbecause of a “heightened sense of public sensitivity” related torecent news coverage of several reporters who have been subpoenaed to revealconfidential sources, most notably Judith Miller, a New York Timesreporter, and Matthew Cooper, a Time magazine reporter, who may servejail time for refusing to reveal their sources. On Feb. 15, a three-judge panelof the U.S. Court of Appeals for the D.C. Circuit held that no privilegeprotects journalists from being compelled to disclose their sources before agrand jury. On April 19, a full panel declined to reconsider the panel’sdecision, upholding it. Miller and Cooper have one appeal left–the UnitedStates Supreme Court.

Marcia Cunningham, senior counsel for the NationalDistrict Attorneys Association and a former prosecuting attorney, said issuingsubpoenas is “standard” for collecting evidence, and said there isno difference between issuing a subpoena to a journalist and issuing one toanother person.

“A prosecutor would issue a subpoena to a reporter ifthey feel that individual has some information or possible information that isimportant to the case,” Cunningham said. “With anybody, you talkwith one person who gives you one version of events and you talk with anotherperson who has a slightly different version. If there’s any way ajournalist may have some information [that differs] then a prosecutor mightissue a subpoena.”

Danny Craig, a district attorney for the AugustJudicial Circuit in Georgia, said he has never subpoenaed a journalist duringhis 27 years as a prosecutor, but agreed with Cunningham.

“I mightconsider issuing a subpoena to a journalist if I have reason to believe [he orshe] is in possession of evidence,” Craig said. “For example, if Iwere to learn that a defendant has mailed a letter with incriminating orimpeaching contents to a newspaper or to a particular reporter.”

FormerJames Madison University student journalist Christy Jerding knows what it islike to be faced with a court subpoena. In 1992, Jerding, then a senior andeditor of her student newspaper, The Breeze, was served with twosubpoenas from the Virginia Commonwealth Attorneys Office ordering her totestify about her article in the school paper. The article contained quotes fromtape-recorded interviews with two students who had been charged and arrested fordistributing cocaine. The subpoenas were thrown out after Jerding, with the helpof a lawyer provided by the Student Press Law Center, convinced the court thatshe had no additional information relevant to the case other than that alreadypublished.

Jerding, a former SPLC intern who is now the editorial directorfor the First Amendment Center in Nashville, said the bill could providejournalists with “a lot of peace of mind” but does not believe itwill pass because, she said, the government is “increasingly lesssympathetic to First Amendment claims by journalists.”

JasonKitchen, a former student journalist, also faced the possibility of being forcedto reveal confidential information. In 2003, Kitchen, who was then attending NewJersey’s Rowan University as a film student, was served with a subpoenafrom the state attorney general. The state wanted unedited footage Kitchen hadshot of a death row inmate for his documentary, “Fatal Mistakes.”With the help of an ACLU attorney, Kitchen argued that he was protected underthe First Amendment’s reporter’s qualified privilege, and the courtruled that Kitchen did not have to turn over his tapes.

Under a qualifiedprivilege, the prosecution must prove that the information they are seeking fromthe journalist is clearly relevant to a significant point in the case, cannot beobtained from any other source, and in some cases represents a material,important fact that “strikes at the heart of the case,” according toGregg Leslie, the legal defense director for the Reporters Committee for Freedomof the Press.

Kitchen said his initial instinct was to fight the subpoena,but said he felt “overwhelmed” by the situation because of hisstatus as a student journalist.

“As a student, it is very difficult tofight something like this because it is unlikely that you will have thefinancial means to attain legal representation or solicit legal advice,”Kitchen said. “I felt that if I was unable to find cheap representation, Iwould be forced to turn over the footage.”

Kitchen, now a graduatestudent at Michigan State University, added that he thinks a federal shield lawmay have given his lawyers more leverage in court but would not have preventedhis situation, because the state’s shield law did not deter the attorneygeneral from subpoenaing him.

Tom Gayda, president of the Indiana High SchoolPress Association and a regional director for the Journalism EducationAssociation, said the bill will only succeed in protecting studentjournalists’ rights if the public views them as no different from workingprofessionals.

“All journalists should be treated the same whetherthey are student or professional,” Gayda said. “The First Amendmentcontains no qualifiers–nowhere does it state that right is only forprofessionals. [Journalists] are all given freedom of the press.”

JohnBowen, chair of the Journalism Education Association’s Scholastic PressRights Commission, said he believes the bill could provide more support andprotection for student journalists when dealing with confidential sources ifstudents are clearly protected by it. However, Bowen claimed, censorship is morecommon than student journalists being forced to testify about sources. Even withthe bill in place, Bowen believes censorship by school administrators wouldstill prevent student journalists from reportingfreely.

“Administrators or other school officials who want to blockstories or shut down sensitive reporting use avenues much easier to them,”Bowen said. “While [this bill] could help in theory and practice,scholastic journalists face far more common and destructive practices byadministrators who want to control content.”

The bill was referred toCommittees on the Judiciary in the House and Senate in February. Committeehearings and votes are expected to be held.