Oct. 16, 2007 · For the first time ever, the U.S. House of Representatives overwhelmingly passed legislation that will protect journalists from being compelled to testify or reveal sources in court.

The shield law grants a qualified privilege to reporters to prevent them, in most cases, from being compelled to testify or to identify sources to federal investigators.

The bill, which passed on a 398-21 vote, provides for a number of exceptions though, including circumstances where disclosure is necessary to prevent and act of terrorism or imminent death or significant bodily harm, where disclosure is necessary to identify a person who has released some categories of private business and medical information, and where the reporter witnesses criminal or tortious conduct.

Sponsors of the bill hailed the vote as a significant step in preserving the relationship between the press and the sources they rely on for information.

“Protections provided by the Free Flow of Information Act are necessary so that members of the media can bring forward information to the public without fear of retribution or prosecution, and more importantly, so that sources will continue to come forward,” bill co-author Mike Pence (R-Ind.) said in a prepared statement. “Without the free flow of information from sources to reporters, the public will be ill-prepared to make informed choices.”

More than 50 news organizations and 70 co-sponsors joined Pence and fellow co-author Rich Boucher (D-Va.) in supporting the bill.

The bill gained bipartisan support and overcame criticism from the Bush administration that contends that the shield law will impair the government’s ability to discover leaks that pose a risk to national security.

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In a press release, the president’s advisors announced that they would beseech the president to veto the bill in its present form.

“The administration believes that H.R. 2102 would create a dramatic shift in the law that would produce immediate harm to national security and law enforcement,” the press release said. “The legislation would make it extremely difficult to prosecute cases involving leaks of classified information and would hamper efforts to investigate and prosecute other serious crimes.”

The overwhelming support of the bill could indicate that the House is prepared to override the potential presidential veto. If the president were to veto the bill, Congress could overcome the veto with a two-thirds majority vote in favor of the bill.

A last-minute amendment from Rep. Lamar Smith (R-Tex.) allowing a judge the opportunity to consider interests in national security when determining whether the qualified privilege applies may have sated several congressmen who shared the administration’s concerns.

Pence also countered that the bill does not represent the radical step painted by the Bush administration, noting that 32 states and the District of Columbia already have similar legislative shield law and that an additional 17 states have judicially crafted protections for journalists.

“The Free Flow of Information Act would set national standards similar to those that are in effect in those states,” Pence said.

The bill only protects professional journalists who regularly engage in journalism “for substantial financial gain” or a substantial part of their livelihood. Under this definition, some, but not all, bloggers will receive protection from federal investigators. Any terrorist organizations or media wings of foreign powers cannot claim protection under the shield.

The Senate judiciary committee passed a similar bill earlier this month, though the bill has not yet received floor time.

Matthew Pollack

© 2007 The Reporters Committee for Freedom of the Press · Return to: RCFP Home; News Page