LEGISLATIVE BULLETIN | July 30, 2008

S. 2035, the Free Flow of Information Act

Summary and Background

On Monday, July 28, Senate Majority Leader Reid filed a cloture motion on the motion to proceed to S. 2035, the Free Flow of Information Act of 2007 (also known as the "federal media shield" or "qualified journalists' privilege"), a bill to protect journalists from being compelled to disclose their confidential sources unless a federal court determines by a "preponderance of the evidence" that all reasonable alternative sources have been exhausted; the source is essential; and that non-disclosure would be contrary to the public interest, using a balancing test that takes into account the public interest in a free press.

S. 2035was originally sponsored by Senator Specter, Ranking Member of the Senate Judiciary Committee, along with Senators Schumerand Lugar. The bill was reported out of the Senate Judiciary Committee on October 22, 2007. In recent weeks, in an effort to compromise with Administration officials, Senators Specter, Schumer, and Lugar have made adjustments to the committee-passed bill, and a substitute amendment will be offered when the bill is considered on the floor.

The substitute amendment would provide the following exceptions to this qualified privilege: the journalist is an eyewitness to or has engaged in a crime; or information is needed to prevent death, kidnapping, substantial bodily harm, sexual abuse of a minor, or incapacitation or destruction of critical infrastructure. The amendment would also provide that a federal court can compel a journalist to reveal a confidential source if the court determines by a "preponderance of the evidence" that the information would assist in stopping or preventing significant and articulable harm to national security, or relates to a leak of classified information that has or will cause such harm, and that the harm outweighs the public interest in having the information reported.

The high-profile arrests of journalists for refusal to disclose their sources, as well as investigations by the media into Administration wrong-doings, have drawn attention to the need for a federal media shield. S. 2035 would create a statutory (as opposed to the current common law) standard that protects both freedom of the press and national security. More than 60 news media outlets and associations, as well as state officials and constitutional scholars support of this bipartisan legislation.

Major Provisions

Section 2: Compelled Disclosure from Covered Persons. The substitute amendment to S. 2035 would prohibit a federal entity from compelling a covered person to testify, or produce a document, relating to protected information, unless a federal court determines by a preponderance of the evidence that: 

1) the federal entity has exhausted all reasonably known alternative sources of the testimony or document; 

2) in a criminal investigation or prosecution it is determined that: 

•there are reasonable grounds to believe a crime has occurred, based on information obtained from a source other than a covered person;

•there are reasonable grounds to believe that the testimony or document is essential to the investigation, prosecution, or defense against prosecution, based on information obtained from a source other than a covered person; and

•nondisclosure of the information would be contrary to the public interest, weighing both the public interest in disclosure and the public interest in the news conveyed and in the free flow of information;

or

3) in a matter other than a criminal investigation or prosecution: 

•based on information obtained from a source other than a covered person, the protected information is essential in order to resolve the matter; and

•the interest in disclosure "clearly outweighs" the public interest in the news conveyed and in the free flow of information. 

The substitutewould require the request for compelled disclosure of protected information to be narrowly tailored.

Section 3: Exception Relating to Criminal or Tortious Conduct. The substitute amendment to S. 2035 would grant an exception to the journalists' privilege for material, including physical or recorded evidence, obtained as a result of the covered person being an eyewitness to, or perpetrator of, an alleged crime or tort. 

NOTE:This section would not apply if the alleged criminal or tortious conduct is the act of communicating the documents or information in question. In that case, Section 2 applies. 

Section 4: Exception to Prevent Terrorism, Death, Kidnapping, Sexual Abuse of a Minor, or Substantial Bodily Injury. The substitute amendment to S. 2035 would grant an exception to the journalists' privilege for material that is reasonably likely to stop, prevent, mitigate, or to identify the perpetrator of, an act of international or domestic terrorism. The substitutewould also grant an exception to the journalists' privilege for material that is reasonably likely to stop, prevent, or mitigate a specific case of death, kidnapping, substantial bodily harm, sexual exploitation of a minor, or incapacitation or destruction of critical infrastructure.

Section 5: Exception to Prevent Harm to the National Security. The substitute amendment to S. 2035 would grant an exception to the journalists' privilege if a federal court finds that it is needed to assist in stopping or preventing significant and articulable harm to national security, or that it relates to a leak of classified information that has caused or will cause such harm. In addition, the court must balance the harm against the public interest in newsgathering and maintaining a free flow of information. 

Section 6: Compelled Disclosure from Communications Service Providers. The substitute amendment to S. 2035 would apply Sections 2 through 5, in the same manner that they are applied to a covered party, to compelled testimony or disclosures by communications service providers of communications, documents, and/or contents from the account of a person who is known or reasonably likely to be a covered person. The amendment would require, however, that a federal court provide the covered person advance or concurrent notice of the compelled testimony or disclosure by the provider and must give the covered person an opportunity to be heard prior to the disclosure. This notice may be delayed for a renewable 45-day period if the court determines by clear and convincing evidence that notice would pose a threat to a criminal or national security investigation, or to intelligence gathering, or that exigent circumstances exist. 

Section 7: Sources and Work Product Produced Without Promise or Agreement of Confidentiality. None of the provisions in the amendment toS. 2035would alter or dilute laws or decisions compelling or not compelling disclosure by a covered person or communications service provider of: 1) a source who provided non-confidential information (e.g. information disclosed to a covered person without a promise or agreement of confidentiality) or 2) non-confidential records, information, or contents of a communication. 

Section 8: Procedures for Review and Appeal. The substitute amendment to S. 2035 would add a section providing that a court may consider submissions in camera or under seal, and also ex parte if necessary. The amendment would provide that courts make decisions regarding the journalism privilege within 30 days, and provides for interlocutory appeals. Finally, the amendment would explicitly state that a journalist may be held in contempt of court if he or she fails to comply with a court's order to disclose a source. 

Section 9: Rule of Construction. The substitute amendment to S. 2035 would explicitly provide that the bill would not preempt state laws on defamation, slander, or libel; modify federal laws on grand jury secrecy; or preclude any plaintiff from asserting a defamation claim against a journalist. The substitute would also explicitly provide that the bill would not "create new obligations, or affect or modify the authorities or obligations of a Federal entity with respect to the acquisition or dissemination of information pursuant to the Foreign Intelligence Surveillance Act[.]"

Section 10: Definitions. 

The substitute amendment to S. 2035 would define "covered person" as a person who gathers material with the primary intent to distribute such information to the public, and who has such intent at the time of gathering the material. The definition includes a supervisor, employer, parent company, subsidiary, or affiliate of a person engaged in journalism. The definition excludes any person who is: 1) a foreign power or an agent of a foreign power; 2) a designated foreign terrorist organization; 3) listed as a Specially Designated Global Terrorist; 4) listed as a specially designated terrorist; or 5) a terrorist organization. 

The amendment would define "protected information" as "information identifying a source who provided information under a promise or agreement of confidentiality made by a covered person or any records, contents of a communication, documents, or information that a covered person obtained or created upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential." 

The amendment would provide definitions for other key terms as well including "communications service provider" and "properly classified information."

Legislative History

On Monday, July 28, Senate Majority Leader Reid filed a cloture motion on the motion to proceed to S. 2035, the Free Flow of Information Act of 2007. The bill is sponsored by Senator Specter, Schumer, and Lugar and has 18 additional Democratic and Republican co-sponsors. The bill was reported out of the Senate Judiciary Committee on October 22, 2007. In recent weeks, in an effort to compromise with Administration and Intelligence Community officials, Senators Specter, Schumer, and Lugar have made adjustments to the committee-passed bill, and a substitute amendment will be offered when the bill is considered on the floor. 

A similar version of this legislation (H.R. 2102) was passed in the House of Representatives on October 16, 2007 by a margin of 398 to 21. 

The Senate is expected to vote on the cloture motion on the motion to proceed to S. 2035 on Wednesday, July 30.

Expected Amendments

The original co-sponsors of S. 2035 are expected to offer an amendment in the nature of a substitute to the bill. The summary in this legislative bulletin reflects the substitute amendment.

CBO Estimate

The Congressional Budget Office (CBO) released a cost estimate of S. 2035 on October 17, 2007. CBO estimates that the legislation would have no significant impact on the federal budget.

Administration Position

At the time of this writing, no Statement of Administration Policy (SAP) has been issued for S. 2035or the substitute amendment to S. 2035. A SAP was, however, issued for H.R. 2102 on October 16, 2007, in which the President's senior advisors stated they would recommend that he veto the bill.

Support for S. 2035

At the time of this writing, the following editorial boards have expressed support for a federal shield law. Former Bush Administration Solicitor General Ted Olson expressed support for the law in a Washington Post editorial on June 28, 2006 entitled "A Much-Needed Shield for Reporters," which is available here. 

DPC