Should journalists be imprisoned if they refuse to divulge their sources to the federal government?
Under current law, they can be — and it’s been done before. The Free Flow of Information Act is a new House bill which would end the practice and institute a federal “shield law” for journalists.
When the government subpoenas somebody and asks for answers under oath, the person is usually required to comply — but not always. Federal law allows a few exceptions such as private information revealed between a patient and their psychotherapist, a client and their attorney, or a confessor and their priest.
Yet even though 49 of the 50 states have state-level laws protecting information shared between a journalist and their source, the federal government does not.
As a result, a number of journalists in the modern era have been jailed after refusing to reveal their sources while under oath in federal court. The most famous is probably Judith Miller of the New York Times, who spent months imprisoned in 2005.
Many people are especially concerned about this power in the hands of President Donald Trump, who has taken a more hostile approach to the press than any president in memory.
What the bill does
The Free Flow of Information Act would for the first time enshrine a journalist-source protection into federal law. It would prevent journalists or news organizations from being forced to reveal to the government any sources or documents related to their investigations.
Such information could only be compelled under subpoena if several separate conditions are all met:
- The federal government can prove it has exhausted other options for obtaining the information.
- The information sought is “critical” to the investigation at hand, rather than tangential.
- “The public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”
This last requirement in particular is subject to considerable interpretation on the part of the judicial system. It’s possible — even likely — that certain courts or judges would almost always rule in favor of the government rather than news organizations, even if this bill became law.
So how would that work in the real world? Take the famous example of the NYT’s Miller from 2005, who was imprisoned for refusing to reveal her source in a grand jury case investigating the leak of the identity of an undercover CIA officer. Presumably Miller would have been significantly less likely to have been jailed under this law, with its much higher burden of proof.
But as even the bill’s sponsors concede, it’s almost impossible to say she “wouldn’t” have been jailed, as a court may still have ruled that the public interest in compelling disclosure may have outweighed any other considerations.
Introduced on November 14, the bill is labelled H.R. 4382 in the House.
What supporters say
Supporters argue the bill strengthens the constitutional protections provided for freedom of the press, preventing punishment for what they say is journalists doing their jobs.
“The First Amendment provides for a free press, but that guarantee means nothing if reporters cannot protect whistleblowers and confidential sources, or if reporters have to live in fear of prosecution or jail time,” said House lead sponsor Rep. Jamie Raskin (D-MD8).
“When the press is unable to do its job, the American people — and our ability to function as a democracy — suffer,” Raskin continued. “A free press is the people’s best friend and the tyrant’s worst enemy.”
What opponents say
Opponents say the law would impair national security, by hamstringing the federal government from finding out who leaked classified state secrets, the most common scenario which has led to jailed reporters.
Opponents also feel journalists misinterpret the first amendment to provide for them an absolute right when it does not. For example, Attorney General Jeff Sessions, asked in a House Judiciary Committee hearing whether he would commit to not jailing journalists for protecting their sources, appeared to answer no.
“There are some things that the press seems to think they have an absolute right to,” Sessions said, seemingly referring to the question which had just been asked about a journalist-source privilege under federal law. “They do not have an absolute right to.”
(Enforcement of violations would depend heavily on who the attorney general is at the time. Contrast Sessions’ comments with those of Obama-era Attorney General Eric Holder, who declared, “As long as I’m attorney general, no reporter is going to go to jail for doing his or her job.”)
Another concern is that far too many people would claim this right.
“Nowadays, when lots of people maintain blogs or posts on the Internet, they could easily claim to be a journalist or reporter — would be covered by this,” House Judiciary Committee Chair Rep. Bob Goodlatte (R-VA6) said. “This is far too broad.”
Over the past decade, a version of this bill has passed the House several times, only to die in the Senate.
During the last Congress in 2015, the concept passed the House 245–182 as an amendment to another House bill. However, the provision was stripped out of the version that ultimately passed the Senate.
Interestingly, even though Republicans controlled the House and voted against the measure by a margin of 71–171, it still passed because Democrats were almost completely in support by a 174–11 margin.
Similar measures had passed the House by significantly wider bipartisan majorities in 2007 by a 398–21 vote and in 2009 by a “unanimous consent” voice vote, only to not even receive a vote in the Senate both times.
Odds of passage this time
President Donald Trump does not appeared to have weighed in on the shield law issue specifically, whether on the campaign trail or as president. However, he had asked former FBI Director James Comey to jail journalists during a February meeting, likely indicating an opposition to a federal shield law.
Vice President Mike Pence voted for the federal shield law as a member of the House.
The bill has attracted one cosponsor from across the aisle, Rep. Jim Jordan (R-OH4). It has not yet received a vote in the House Judiciary Committee.