By Kurt Wimmer and Jeff Kosseff

The Senate Judiciary Committee on Thursday approved a bill that would prevent federal prosecutors, agencies and civil litigants from forcing journalists to reveal their confidential sources without court approval.

In a 13-5 vote, the committee approved S. 987, the Free Flow of Information Act (FFIA), which is sponsored by Sens. Charles Schumer, D-N.Y., and Lindsay Graham, R-S.C.  The bill would require anyone seeking confidential source information to exhaust alternative sources, demonstrate a high degree of relevance for the information sought, and would require a federal judge to conduct a balancing test to determine whether to allow a prosecutor or litigant to subpoena a journalist in federal court. Although 48 states and the District of Columbia protect journalists from compelled testimony either by statute or common law, Congress has not yet provided similar protections.

Some blogs and new reports have erroneously stated that the FFIA would only cover “credentialed” or salaried journalists who work for mainstream media.  The legislation, in fact, provides strong protection for new-media journalists, including bloggers.

The FFIA covers individuals who gather news and information for the public, regardless of their medium.  The protection applies equally to new media, such as blogs, web sites, and news apps, and traditional media, such as newspapers, magazines, and broadcasters.   The bill states that it covers journalists who distribute news “in print, electronic, or other format,” and it explicitly mentions websites and mobile apps.

Similarly, the bill’s protections are not limited to people who produce journalism for financial gain.  Indeed, the FFIA does not contain any requirements regarding compensation.  The bill covers a wide range of bloggers, student journalists, and others, as long as their primary intent is to gather news and information for the public.

The bill also provides a “safety valve” that gives a federal judge broad discretion to cover individuals who do not fit into any of the categories listed in the bill.  This provision allows the judge to grant shield law protection to an individual who does not fit into one of the many listed categories if coverage would be in “the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case.” Although the vast majority of people who gather news would fit into the listed categories, this safety valve ensures that the bill is inclusive and covers unanticipated situations. 

Indeed, the safety valve, as well as the bill’s explicit coverage of all forms of news gathering technologies, makes the FFIA’s coverage broader than that of most state shield laws.  Many state shield laws cover only certain forms of traditional media, such as newspapers or broadcasters.  But the FFIA anticipates that news media are rapidly evolving, and it ensures that both news-gatherers of all sizes will be protected from being forced to divulge their confidential sources.

The authors, attorneys at Covington & Burling LLP, represent a 70-member coalition seeking passage of the FFIA.