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  By Douglas Lee
Special to the First Amendment Center Online

To no one’s surprise, both the U.S. House of Representatives and the Senate are considering a federal shield law to protect newsgatherers from subpoenas and other efforts to require their testimony.

The Free Flow of Information Act of 2009 was introduced in the House on Feb. 11 by Reps. Rick Boucher, D-Va., Mike Pence, R-Ind., John Conyers, D-Mich., and Bob Goodlatte, R-Va. The bill, H.R. 985, has 35 co-sponsors.

The Senate version of the bill, S. 448, was introduced on Feb. 13 by Sens. Arlen Specter, R-Pa., Charles Schumer, D-N.Y., and Richard Lugar, R-Ind.

The House bill is identical to the shield-law proposal the House passed in 2007 by a vote of 398 to 21. The Senate bill is similar to a previous shield law passed by the Senate Judiciary Committee in 2007. That measure died without a vote at the end of the last Congress.

As before, the two bills differ in how they define journalists. The Senate bill applies to any person “who is engaged in journalism” and defines journalism as “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

The House version, on the other hand, defines a “covered person” as someone “who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.”

Some bloggers and freelancers are concerned that the House version’s requirement that newsgathering be a “substantial” portion of the person’s livelihood leaves them unprotected. That issue will need to be resolved if, as expected, both the House and Senate pass the bills before them.

During his campaign, President Barack Obama told newspaper executives at the annual meeting of the Associated Press that he endorsed a federal shield law to protect reporters from subpoenas and probing prosecutors. Obama, however, was less willing to protect anonymous sources, saying courts should be involved in determining whether a source’s confidentiality should be preserved.

Posted March 2009



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