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Jailing Journalists: Why We Need a Federal Reporters' Shield Bill

Sandra Fulton,
ACLU Washington Legislative Office
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December 2, 2009

Most people don’t realize that the American government is in the habit of locking up journalists. We are disgusted when governments like China and Cuba criminalize the press, but in 1972, the U.S. Supreme Court said the press did not have absolute protection from revealing confidential information in court and, in doing so, dealt a significant blow to our own media. As a result of that decision, American journalists are repeatedly subpoenaed and, in some cases, imprisoned for trying to maintain an effective press.

In 2005 Judith Miller, the New York Times, Pulitzer Prize-winning journalist, famously refused to reveal her source in a CIA leak from the Bush administration and then spent nearly three months in jail. In 2006, freelance video blogger Joshua Wolf videotaped a 2005 anarchist protest. When Wolf refused to turn over the unaired parts of his video to curious federal officials, he spent the next 226 days in a federal prison. The list of harassed journalists goes on.

Currently, 49 states and the District of Columbia recognize some form of reporters’ privilege. However, the lack of a federal statute means that reporters’ protection is limited — particularly when the subject matter of the journalists’ work is likely to trigger federal investigations. Both Miller and Wolf would have sought protection under their state shield laws, but because the feds were investigating, the two were left with no defense.

Most legislators can agree that some sort of protection is necessary for journalists to do their job, and the Senate Judiciary Committee is currently considering the Free Flow of Information Act of 2009 (S. 448). The debate on legislation becomes heated when lawmakers try to decide who is a “real” journalist and when they should enjoy such protections. Opponents of the bill appear to be terrified of the blogosphere revealing national security secrets on a daily basis and then running for the shelter of a shield bill. The Free Flow of Information Act of 2009 is currently due to be marked up in the Senate Judiciary Committee tomorrow, December 3.

A recent compromise in the bill between key Democrats and the Obama administration has attempted to assuage their fears. The compromise would allow federal judges to quash subpoenas against reporters if they determine that the public interest in the news outweighs the government’s need to uncover the source. It also recognizes emerging technologies and extends coverage to unpaid bloggers engaged in gathering and disseminating news information. The new language proposed for the federal shield bill does not go as far as we would like in protecting the confidentiality of reporters’ sources — particularly from prosecutors and from civil litigants, but it is a significant improvement over what the Senate Judiciary Committee had been considering previously.

A free press is of utmost importance to a democracy. Journalists provide information voters need to evaluate government officials and candidates for office. They uncover unlawful acts by elected representatives and expose government abuses of power. Investigative reporting helps ensure our government is open to public scrutiny. The absence of a federal shield law has a chilling effect on the press as a whole, so the ACLU is encouraging the Senate to adopt the new language and to move forward quickly to reconcile its bill with the previously passed House bill.

You can find the ACLU’s letter of support of the compromise language here.

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