Media Shield Law on the Horizon

The NYT is reporting on the development of the media shield law designed to protect reporters from disclosing their sources. The law is required in order to give cover to sources who provide information vital to the public knowledge. The type of law that the NYT is reporting on seems like it might be sufficient protection but much hangs on any potential litigation in the court system.

As reported by the Times,

Under the deal, made public Friday, federal judges could quash subpoenas demanding testimony or information from reporters if the judges determined that the public interest in news gathering outweighed the need to uncover the source of a leak, including, in some circumstances, unauthorized disclosure of classified government information.

Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.

A version of shield legislation was approved by the House in March. But a similar bill has stalled in the Senate, and its prospects appeared to dim significantly in September when the administration, responding to apprehension expressed by intelligence agencies and prosecutors, took a harder line with regard to cases in which the government could claim national security concerns.

With the new agreement, however, the White House has now moderated that position.

The text of the bill is here in pdf.

As they say the devil is in the details. The determination of when a source is protected and when it isnt is made in the courts under a balancing test of public need to know versus need to keep secret. The Senate version of the legislation categorizes three different balancing tests for courts to use in deciding when disclosure is required. There are different considerations for civil, criminal, and national security cases.

In a standard criminal cases the standard required for production of a source is that a preponderance of the evidence shows that the compelling party has exhausted reasonable alternatives and that the source is "critical to the investigation or prosecution or to the defense against the prosecution". the washington post stated that,

In criminal cases, the compromise puts the burden on the journalist to establish in court why the public interest would be harmed by the disclosure of a source or sources. The government or defense attorney would need to show only that the information sought is essential to the case.

This is not quite true. My reading of the law is that the burden is always on the compelling party. They must show that the compulsion of the source for the prosecution of the case outweighs any interest in keeping the source under wraps. there is not a burden shift. It is possible that the way the proposed law will play out in criminal circumstances is that there will be a standing presumption in the courts that the prosecution interest outweighs the interest in keeping it secret but the law as proposed doesnt contain that presumption. In fact it could be argued that the law itself represents the idea that the presumption is against disclosure. In assessing this language the NYT said,

Ordinary criminal cases, as in prosecutors’ effort to find out who leaked grand jury information about professional athletes’ steroid use to The San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors. For a judge to quash a subpoena, the burden would be on a reporter to make it “clear and convincing” that the public interest in the free flow of information should prevail.

The language of the law as is available does not use the words clear and convincing in regards to the disclosure and balancing test for journalists. i am not sure where they got this idea as they dont link to available source of text. As currently available the only standard used in regards to disclosure is preponderance. To compel a source the case must be made that the public interest in gathering or disseminating news or information is outweighed by the need for disclosure. Disclosure must "more probably than not" outweigh that interest. It is for the compelling party to prove this. Maybe it is going to be amended to shift and ammend the burden but it hasnt yet.

On the civil side it plays out much as it does on the criminal side. all other options must be exhausted and the source must be one "critical to the successful completion of the matter" and again the disclosure interest must outweigh the secrecy interest.

That leads to the final category, national security. National security had been the sticking point as according to HuffPo,

The administration wanted to eliminate that balancing test in many cases involving terrorism and other security cases.

Under the compromise, the balancing test would be eliminated in classified leak cases where the government can show that disclosure of a source's identity is necessary to prevent or mitigate an act of terrorism or substantial harm to national security. But the government would also have to provide specific facts: it could not make a national security claim and then withhold most of the details.

This change has not yet been made in the available text. As currently drafted the text has the balancing test for national security just as the house bill has. From what i can tell this means that section 2 (a)(3)(A) will be moved outside section 2(a)and new language will be added as to the specificity required for compulsion. Right now it is only a "reasonableness" standard which is a very illusive and slippery burden. Judges would most likely side with the government on these types of cases simply because they wouldnt want a terrorist attack on their heads.

Most of the effects of this legislation will be determined by how high the courts choose to weigh the interests of non-disclosure. Because this is one of the weights in the balancing test an artificially low weight would gut the legislation and a heavy weight would prove very restrictive. Until this is litigated though the answer wont be known. According to Arlen Specter since 2001 at least 19 journalists had been subpoenaed by federal prosecutors for information about confidential sources and that four had been imprisoned for refusing to comply. What he doesnt say is whether any of them would be helped by this law.

Unless significant weight ends up on the journalists side and unless the courts actually hold the governments feet to the fire on national security claims the law could be much ado about nothing.