A hope of common-law privilege for reporter
Based on facts mentioned above, it is not surprising news media and journalist organizations consider the need of enacting a federal law acknowledging reporter’s privilege is urgent. Currently, a journalist has no common-law privilege of refusing to disclose confidential resource on the federal level.
However, the effort of proposing a federal shield law is constant. The Free Flow of Information Act, a bill offered reporters right of refusing to disclose sources and information, was first introduced to the Senate in 2007. In October 2007, the House of Representatives passed the Act while it failed to invoke cloture in the Senate and stalled. The bill was reintroduced in 2009 and was passed by the House and the Senate Judiciary Committee. Nonetheless, the bill was adapted to accord with the Obama administration’s concern about national security and finally died without support in 2010. Again, In May 2013, the Free Flow of Information Act of 2013, the revised edition of the original bill, was introduced and was passed by the Senate Judiciary Committee in September 2013.
The Free Flow of Information Act of 2013 is similar to a qualified state shield law, offering protection for journalists while proposing conditions in which they can be compelled to testify. To make reporters testify, the Act mainly requests a court to determine based on standards that are consistent with three-part test proposed by Justice Steward and proposes one more requirement for criminal trial that “there are reasonable grounds to believe that a crime has occurred” (Free Flow of Information Act of 2013, 2013).
Restrictions on reporter’s privilege in this Act firstly appear at the point of compelled disclosure of information and identity of confidential source with regard to national security. In the Act, requests for revealing confidential source are permitted when: “disclosure of the identity of such a source is necessary to prevent an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm” (Free Flow of Information Act of 2013, 2013). The group of people the Act protects is called “covered person” and the definition of “covered person” serves as the second qualification. According to the Act, a “covered person” refers to “a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person” (Free Flow of Information Act of 2013, 2013). Under the Act, a covered person will be notified and given the opportunity to be heard before the court before the communications service provider he has business transactions with is compelled to disclose his identity and information while the notice can be delayed if the court determines “such notice would pose a substantial threat to the integrity of a criminal investigation” (Free Flow of Information Act of 2013, 2013).
Limitations of the Free Flow of Information Act of 2013
It’s no wonder conflicting interests reflected in the Free Flow of Information Act of 2013 and even the core of issue of protection of confidential sources represent the struggle between government interest in disclosing information and public interest in gathering and disseminating information. In this sense, the Free Flow of Information Act of 2013 tends to have government interest in protecting national security outweigh reporter-source privilege. After a series of events of leaking classified information that are relevant to government officials like Snowden and Manning, the Obama administration has been under increasing pressure in protecting government’s secret files and tries to ensure so-called national security by punishing these sources of leaks. As terrorist attacks have kept occurring since the beginning of the 21st century, the public becomes more willing to trade certain degree of freedom of expression, the heart of democracy and the First Amendment, for a greater sense of safety. The Free Flow of Information Act of 2013 adapts itself to cater to current needs of both the public and the government. There is a fear that the Act may even facilitate the government to obtain information of confidential sources from reporters and offer them no actual protection (RT, 2013). If the Act was enacted at the time when Pentagon papers of the Vietnam War were revealed, reporters of the New York Times might not pursue a privilege but testify before a court to identify the source and disclose all classified information it obtained because of national security concern. There is no doubt that the government has a compelling interest in protecting certain classified information so that disclosure of these documents will not cause instant danger to U.S. citizens while it is also these information plays a crucial role in guaranteeing the public interest of supervising the government and it is a journalist’s job to disseminate these information and keep the public informed.
On the other hand, the definition of “covered person” is far too narrow. As the definition connects protection with economic status and employment, people do journalism with no profit and new kinds of journalists on the Internet like bloggers are excluded from protection. It is not surprising this Act is inclined to protect interest of reporters affiliated to large media organizations as these media outlets compose the major force lobbying for this act. The narrow definition can potentially endanger citizen journalism that is of increasing importance in the process of dissemination of information, ignoring privilege for freelancers and bloggers merely because they are not paid by particular news organizations. In this sense, the Act actually leads to discrimination favoring certain hired journalists over those non-paid or self-employed ones, which is likely to discourage the development of journalism in the context of the Internet.
In conclusion, even if the Free Flow of Information Act of 2013 can be passed, it is flawed and needs further improvement as it fails to provide necessary protection for journalists in the new age. Like Society of Professional Journalists remarks (n.d.), the Act is far from perfect while “having some protection is better than none at all.”
A discussion about the downside of Free Flow of Information Act of 2013