The Honorable Patrick J. Leahy
Ranking Member
Senate Judiciary Committee
433 Russell Senate Office Building
Washington, DC 20510-4502

Re:       Reporters’ Shield Legislation
S. 2831, The Free Flow of Information Act of 2006

Dear Chairman Specter and Ranking Member Leahy:

On behalf of the ACLU, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we urge you to amend S. 2831 during markup to narrow the National Security exception and to provide greater protection to defendants facing loss of life or liberty.

To further First Amendment rights, the ACLU generally supports the concept of a reporters’ privilege or shield to protect their confidential sources. We are concerned, however, that the national security exception could be misused in such a way as to nullify any protection afforded a reporter’s source.  Additionally, the balancing test regarding a defendant’s right to compel testimony may be insufficient to protect defendants from being unjustly convicted. If the Free Flow of Information Act is amended to narrow the national security exception, and adequately protect defendants’ rights, and no problematic amendments are adopted, the ACLU would support this legislation.

Reporters’ Privilege is Important to Maintain the Flow of Information to the Public

From Deep Throat to Enron, the public has been informed about matters of public interest through reporters who rely on confidential sources. Reporters have been able to obtain this information because these confidential sources believed they would be assured anonymity. Increasingly, however, reporters are being subpoenaed for their sources, particularly in federal matters, where no reporters’ privilege exists.

Currently, forty-nine states and the District of Columbia recognize some form of reporters’ privilege, either through statute or common-law.[1] In 1972, the Supreme Court, in a 5-4 opinion, refused to find even a qualified First

Amendment privilege for reporters.[2] Since Congress has not yet acted on creating such a privilege, none exists at the federal level. 

If a reporter is not able to provide her sources confidentiality, it is likely that those sources will not reveal the information, leaving the public in the dark.

Because information is essential to an informed electorate, the ACLU supports the concept of providing a conditional privilege for confidential sources. While S. 2831 provides important protections, the broad national security exception risks undercutting the privilege granted in the legislation and the balancing test for defendants when seeking exculpatory information risks depriving defendants of a fair trial.

The Rights of the Accused To a Fair Trial Should Be Better Protected

The predecessor to this bill, S. 1419, provided what appeared to be an absolute privilege for the source of the information, except in the case of national security. The ACLU objected to that provision, as it could lead to an innocent person being convicted or executed. S. 2831 now balances the need of the public for information against the rights of the accused to compulsory process.

Under the Sixth Amendment, the accused has a right “to have compulsory process for obtaining witnesses in his favor.” A criminal defendant should therefore have the right to subpoena testimony and evidence from a journalist with respect to material that was not obtained under confidential circumstances in the same way that he can subpoena testimony and evidence from any other person.

On the other hand, it is appropriate to require even a criminal defendant to make a special showing of need before compelling the disclosure of the identity of a confidential source or of materials that were obtained under confidential circumstances. If a criminal defendant can demonstrate that he needs certain evidence for his defense and cannot obtain it elsewhere, the bill should make it clear that he will be given access to that information. 

Because S. 2831 requires a court to weigh the “public interest in newsgathering and in maintaining the free flow of information” in making its decision regarding disclosure to a defendant, a defendant’s right to fair trial may not be adequately protected under the standard in the bill.  A defendant’s right to a fair trial and ability to defend himself against criminal charges should always outweigh the public interest in newsgathering; thus a balancing testing is not appropriate in this context.

The National Security Exception Is Overbroad

The bill includes an overbroad national security exception that should be significantly narrowed.  At a minimum, the harm to be avoided by invoking the exception must be “imminent” harm.  Absent a requirement of imminent harm, the government may be able to override the privilege on some theoretical harm that may or may not occur in the future. The standard of “serious damage to national security” may well prove to be too broad, particularly when the government relies upon conclusory statements. Finally, the “Rule of Construction” appears to be superfluous. Nothing in the act implicates or limits the Foreign Intelligence Surveillance Act.

We look forward to working with you to further refine this important bill.

Sincerely,                                                                 

Caroline Fredrickson
Director                                       

Marvin J. Johnson
Legislative Counsel

Cc: Members of the Senate Judiciary Committee
Sen. Richard G. Lugar
Sen. Christopher J. Dodd

Endnotes

[1] Thirty-one states have adopted a reporters’ privilege through statute. Eighteen states have recognized some form of reporters’ privilege through common-law interpretation. Wyoming is the only state that has not recognized a reporters’ privilege in any form.
[2] Branzburg v. Hayes, 408 U.S. 665 (1972). Although Justice Powell was one of the five in the majority, he also authored a concurring opinion in which he found that reporters have a qualified privilege to refuse to testify regarding criminal conduct. Given the majority’s categorical refusal of the reporters’ claims, Justice Powell’s concurring opinion served primarily to muddy the waters. The Court did note, however, that Congress and the states were free to enact such privileges if they so desired. In the wake of Branzburg, several states accepted that invitation.