“Free Flow of Information Act of 2005”
I find both of these overly broad. I’m far more comfortable with the Illinois law that is described here:
Under the Privilege, reporters are not required to disclose the source of any information unless a court finds that “all other available sources of information have been exhausted” and that “disclosure of the information sought is essential to the protection of the public interest involved.” 735 ILCS 5/8-907 (2001). The burden of proving these two elements is on the person or entity seeking access to the information.
The problem with both of the proposed bills above is that it allows someone doing something clearly illegal to hide when there the crime is relaying the information. This has significant implications for national security.
Say Philip Agee wanted to disclose the name of US operatives again, but he wanted to avoid prosecution under the current law. All he would have to do is find a person with a web site that covers news and then leak the information to them once he receives a promise of confidentiality. The way both laws above are written, there would be no way to determine the source because such a move is explicitly forbidden.
The Illinois law does provide a level of protection, but if the reporter is the only source of that information, she may be compelled to testify. My reading of the law would mean to me that Judith Miller could have been charged with contempt in Illinois and jailed.
The reason I don’t buy the doom and gloom scenarios that many journalists are trying to make sound inevitable is that Illinois journalists don’t have absolute protection and it is likely that in a state case, Judith Miller would be in jail in Illinois as well, but the Illinois press is doing just fine with anonymous sources.
This to me is over the top:
It is about showing other countries the United States wants to democratize — and for which a free press is essential — how to do it right.
A free press is essential, but it’s still unclear to me that forcing a reporter to testify about an act that they observed removes the freedom of the press. Making the burden difficult to force such disclosure seems like a good way to promote free flow of information, but I see no argument for an absolute protection.
Most anonymous sources aren’t violating any laws and so a shield law is irrelevant in those cases. When a source is violating the law would primarily be violating the secrecy of a Grand Jury by a lawyer, passing confidential information or something similar. Potentially this could keep some whistleblowers from talking to a reporter, but how is that any different than the law at current?
Finally, in cases where a defendent is attempting to present a defense, I’m very reluctant to remove the ability of such a person to subpeona all material that may be exculpatory.
A second part is worrisome to me as well.
A concern among lawmakers — especially those who have been prosecutors — is finding the balance between national security and the need for journalists to protect confidential sources. The bill writers will not want to cover every blogger, and some journalism organizations are uncomfortable in having Congress define who is a journalist. But these issues can be addressed if there is a will.
I’m not certain the issue of who to cover can be easily solved. In fact, by trying to limit who is legally considered a journalist, I’m afraid of a precedent that those who don’t fit that definition may be interpreted by the courts to be regulatable.
Further, if it’s such an important protection, why limit who is covered?
Even more troubling is that I might have different rules depending on where I publish. I write for the Arch City Chronicle a bi-weekly paper on politics in St. Louis. Presumably I’d be covered if I worked on a story for them, but not as a blogger–so what about stories that I both blog about and write paper stories about? And why is my blog a different protection level given it’s where I write most?
My reading of the Illinois statute is I’m covered by the law as a blogger.
Set aside the national security angle.
Poorly written shield laws seem to be a blank check for officials to slander their critics.