[Infowarrior] - Compromise Reached on Senate Shield Law

[Richard Forno]

Compromise Reached on Senate Shield Law
Q&A with Newspaper Association counsel Paul Boyle

By Clint Hendler

http://www.cjr.org/campaign_desk/compromise_reached_on_senate_s.php?page=all
Today the prime Senate sponsors of the Free Flow of Information Act— 
or, as it’s commonly known, the shield bill—announced that they’d  
reached a compromise with the White House on the bill’s most  
contentious issues: who would be considered a journalist, and just how  
much protection journalists would get from subpoenas demanding  
testimony.

The compromise bill’s definition of who is a journalist—or, in  
legislatese, a “covered person”—is surprisingly expansive. It sets up  
no payment or employment test, and therefore would clearly cover  
student journalists, freelancers, book authors, and any blogger who  
regularly practices journalism.

The bill treats the balancing act between forcing testimony and  
granting shield to journalists receiving subpoenas differently,  
depending on whether the subpoena is brought in a civil trial or a  
criminal trial. In a civil trial journalists are the most protected— 
the litigant would be forced to demonstrate why their need for the  
information would serve a greater public interest that the  
journalist’s need to protect their source or the information they  
obtained. In a criminal trial, the situation is somewhat reversed: the  
journalist would be forced to demonstrate by a higher standard—“clear  
and convincing” is the proposal’s term—that their need to protect  
confidential sources or information outweighs the public interest to  
be gained by providing testimony. Journalists who get subpoenas for  
information that could prevent a future act of terrorism or other  
specific harm to national security would get no balancing protection,  
and would be forced to testify.

Newspaper Association of America general counsel Paul Boyle, who has  
been intimately involved in efforts to bring a federal shield law to  
life, spoke briefly with CJR following a conference call discussing  
the compromise with representatives of media organizations.

Clint Hendler: What were the biggest concessions that the White House  
was willing to make between their September preferred language and  
what’s been arrived at today?

Paul Boyle: Well, I think the White House originally would say that  
there’s no public interest balancing act for leak investigations  
involving national security. And they also said that there would not  
be a public interest balancing in civil cases that put the burden on  
civil litigants that put the burden on the litigants to make the case  
that the public interest would be served by having the disclosure.

In criminal cases they were originally saying it would have to be  
extraordinary circumstances for the covered person to make the case  
that the public interest in news gathering outweighed the compelled  
disclosure. And they’ve changed that to say that a covered person must  
make the case by clear and convincing evidence in news gathering and  
free flow of information outweighs public disclosure. That was a  
really big trade off. The weight on the scale is sort of tilted  
towards the government in that section, and the weight on the scale is  
sort of tilted toward the media in the civil section.

CH: In terms of the actual history of reporters’ subpoenas, isn’t the  
fact of the matter that most of them come in civil cases? So maybe  
that’s where stronger protections are needed more of the time.

PB: That’s true. That’s right. And I think that in that situation it’s  
kind of an unusual thing to ask reporters to reveal confidential  
sources. You could still get the information, but you’d have to show  
that the public interest in doing so really outweighs the public  
interest in news gathering and the free flow of information.

CH: Civil cases are treated a little differently than criminal cases,  
and criminal cases involving national security and terrorism are  
treated quite differently than regular criminal cases. Are those the  
three categories for the different enforcement of the balancing act  
under the bill?

PB: Yeah. Section 5 is a critical component; it’s the national  
security exception. At one point, to compel disclosure to prevent  
significant and articulatable harm to national security or to prevent  
a terrorist attack there was public interest balance on whether or not  
disclosure was in the public interest. And that’s gone. And, in  
reality, if we knew where Osama bin Laden was located, the media would  
turn that information over. But if the government wanted to compel  
that, they could say “That’s specific and articulatable harm. We want  
to prevent a terrorist attack.” We’d never win that case.

But if there were a leak situation, that would go under the criminal  
area. If there were a leak investigation looking at the CIA prison  
story, or the warantless wiretapping leak, Abu Ghraib, it would go  
under section two, or the criminal section. If you were investigating  
a past leak you would have public interest balancing. The reporter  
would at least have the ability to say “Here, there’s clear and  
convincing evidence to say that this story was valuable to the  
public,” and be able to make the case that the source could be  
protected. But if there were a leak that the government could  
demonstrate that there’s going to be significant and articulatable  
harm, or potential for a terrorist attack from that leak, then they  
could get the information.

CH: Let’s take as a recent example the Times’s wiretapping story. Many  
people argued that that story did make attacks more likely. Is that a  
case where there would be a battle about whether or not that argument— 
that attacks would be more likely because the program was exposed—was  
far enough along the line of a significant and articulatable harm?

PB: You can’t really look at any kind of case and try to predict the  
outcome. It all depends on how it’s presented, and the facts. I think  
what’s important with this bill is that you know what the rules and  
procedures are, so you don’t have to spend any energy and time and  
resources knowing where the lines are drawn. In that situation, I  
imagine lawyers would argue that it revealed that this was going on to  
members of Congress and the general public, and led to legislation  
enacted by Congress to change warrantless wiretapping. These things  
are going to be balanced out and judges are fully capable of balancing  
the competing interests on both sides. And they do it everyday.

This bill was never about a particular case. It was always about clear  
rules of procedure and giving guidance to the courts. And I think case  
law will develop.

CH: In the event of a criminal leak investigation, the argument that  
that leaker might leak again wouldn’t be sufficient to compel  
testimony from a covered person. Is that correct?

PB: Yes. The language is fairly complex. It says the government can’t,  
on its face, say the fact that the leaser would leak again. That’s not  
good enough. They have to provide further evidence that there’s going  
to be the potential for a future leak, and present facts to that.

With this bill, on national security leaks, for the most part the  
government can’t go up there and say “We need the information for  
national security.” They’ve got to demonstrate why they need the  
information. On leaks, it protects that perspective; it provides  
balancing when the government is looking back.

CH: You were on this conference call that just broke up. How is this  
being received?

PB: I think there was a lot of good discussion. There was discussion  
about the clear and convincing evidence standard, and whether or not  
that was too much of a give. There were some folks who were concerned  
about that, and there was some conversation about whether non- 
confidential information was protected. It’s much clearer in the house  
bill that there’s protection for non-confidential information.

CH: So, information that was given without the explicit promise of it  
being confidential?

PB: Correct. But generally speaking, at the end of the day, people  
felt this was a good compromise worth our support if indeed this gets  
the administration to support the bill and we can get this to the  
president’s desk.

CH: And there’s still a long way to go.

PB: Absolutely!