Reporters Shield Bill that Passed the House Compromises on Free Speech, ACLU says

October 17, 2007
FOR IMMEDIATE RELEASE
Contact: (202) 675-2312, media@dcaclu.org

Washington, DC – The American Civil Liberties Union today expressed disappointment with the version of the Free Flow of Information Act of 2007 that passed in the House last night, but believes the reporters’ shield legislation is a step in the right direction. H.R. 2102, introduced by Rep. Mike Pence (R-IN) and Rick Boucher (D-VA), will lessen the chance that reporters will be arrested or intimidated for their reporting, particularly when using government sources.

Amendments to the bill added exceptions that will limit the public’s access to information even in cases where there is no tangible threat to national security or public safety. Under an adopted amendment offered by Rep. Lamar Smith (R-TX), a court may consider alleged harm to national security even in cases where the information provided to a journalist is not "properly classified." The bill also gives the administration some discretion to decide who qualifies for the privilege. Under the exceptions added to the bill, the administration can arbitrarily designate a journalist as a "terrorist" based solely on unsubstantiated evidence of their alleged association and speech. In the past, some administration officials have publicly acknowledged that the laws authorizing terrorist designations are overbroad in covering individuals and groups who pose no threat to national security.

The legislation otherwise mirrors existing Department of Justice guidelines for subpoenaing the press, but shifts authority from the attorney general to the federal courts to decide when journalists must disclose information to the government – providing a greater chance that their cases will not be politically motivated. Passage of the bill is the first step towards aligning the federal government’s shield laws with the forty-nine states and the District of Columbia, all of which recognize a reporters’ privilege.

The ACLU urges the Senate to go further to defend the free flow of information by ensuring that the government is not the arbiter of who is covered by the journalists’ privilege and what information the public can receive.

The following can be attributed to ACLU Policy Counsel Jim Tucker:

"The free flow of information is the lifeblood of a democracy, and journalists are the conduits. At a time when the federal government is increasingly trying to govern from the shadows, the House action goes far to bringing to light the actions of our elected representatives and government officials. America’s press must be allowed to be a vigilant watchdog against abuse of power and corruption. This bill marks a first step in ensuring that the press will not be muzzled from exposing illegal government programs, from warrantless wiretapping to kidnapping and torture, but we must go further to protect reporters. We urge the Senate to take up this legislation soon, and we hope their version will do more to protect democracy through a free and vigorous press."

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