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Blunt, Bipartisan Group Push New Media Shield Law – Legislation Would Codify & Augment New DOJ Media Guidelines And Provide Additional Protections, Ensuring They Can’t Be Undone

Bill Would Require Court To Weigh Public Interest In Unfettered Newsgathering Against Needs Of Law Enforcement

January 27, 2014

WASHINGTON, D.C. – Today, U.S. Senator Roy Blunt (Mo.) and a bipartisan group of Senators announced their support for an updated medial shield bill that would codify into law and expand upon the recently-announced Department of Justice media guidelines. In addition to supporting the original legislation that offers legal protections to journalists engaged in newsgathering activities, the senators said that they would seek to prevent future administrations from rolling back the DOJ guidelines incorporating some of them in the legislation. 

"I supported similar bills in the House in 2007 and 2009, and I think this bipartisan bill is an improvement on that legislation. I'm proud to be part of this effort, and I will continue my commitment to protecting Americans’ First Amendment rights,” Senator Blunt said. 

Blunt was joined by Senators Charles E. Schumer (N.Y.), Lindsay Graham (S.C.), Richard Blumenthal (Conn.), Johnny Isakson (Ga.), Amy Klobuchar (Minn.), and Jon Tester (Mont.) 

The senators noted that while the DOJ guidelines are a good start, future administrations could simply undo the new guidelines if they so choose. The senators today said they would push to codify into law those portions of the guidelines that go beyond the original media shield legislation, by amending the legislation as it moves through committee and onto the floor. Specifically, the senators will push to limit the number of times that the DOJ can ask a court to extend, by 45 day increments, its obligation to notify a member of the press that the Department of Justice has sought that person’s records. The new legislation will ensure that only one extension can be granted, thus requiring the DOJ to notify outlets within 90 days. 

Additionally, the DOJ has proposed having its own guidelines explicitly apply not just to records that are sought from third-party communication providers, but from other holders of business records (such as credit card companies) as well.  The Judiciary Committee will markup the legislation in July, and the senators intend to clarify that the bill applies in those circumstances as well.  

The bill sets up a legal process for approving the subpoenas that would guarantee consideration of the public’s interest in protecting the freedom of the press. Prosecutors would have to convince a judge that the information at issue would “prevent or mitigate an act of terrorism or harm to national security.” 

A summary of the original bill appears below. 

Summary of Free Flow of Information Act of 2013 

  • Protects journalists and their employers from having to reveal information, including source identity, that a reporter obtains under a promise of confidentiality and in the course of carrying out newsgathering functions.
  • Establishes a legal framework for determining the limited circumstances under which such protected information can be subject to compelled disclosure in court.
  • Provides no ABSOLUTE privilege for journalists. In every case, a party (usually the Government) will have to argue to a court its need for the information at issue.
  • Requires, in most cases, a court to apply a balancing test before compelling disclosure (public interest in disclosure versus public interest in newsgathering).
  • Delineates exceptions when the journalist has no privilegeagainst the disclosure of information:
  1. In classified leak cases: when information would prevent or mitigate an act of terrorism or harm to national security. 
  2. In regular confidential information cases (where a classified leak isn’t at issue): when information would prevent or mitigate, oridentify a perpetrator of, an act of terrorism or harm to national security; and 
  3. In non-national security cases: 
    • when the information would prevent or mitigate death, kidnapping, and bodily harm (Section 4); or 
    • when information was obtained by the journalist through observation or perpetration of a criminal act (Section 3), OTHER than an act of leaking.

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