Free Flow of Information Act
The Free Flow of Information Act is a bill that would create a Federal Media Shield Law for journalists with protections against revealing their confidential sources and documents in the face of federal prosecution. Most states have a media shield law, but the federal government has not enacted a national shield law.
Twice Senator Arlene Spector introduced the Free Flow of Information Act into the Senate for its consideration. Senator Spector introduced the bill in the 110th Congress as the Free Flow of Information Act of 2007 and in the 111th Congress at the Free Flow of Information Act of 2009. The bill failed cloture in the former and never made it out of committee in the latter. Both times Senator Charles E. Schumer was a primary sponsor.
Free Flow of Information Act of 2009
The Free Flow of Information Act of 2009 is a bill supported by the White House and the newspaper industry. The bill provides protections for journalist against revealing information identifying a source or documents obtained while engaging in journalism and obtained through a promise of confidentiality. Additionally, the Free Flow of Information Act of 2009 requires notice to the media entity whose records are sought and an opportunity for the media entity to challenge subpoenas, court orders, etc. where the government seeks documents protected under the Act.
Despite the protections afforded journalist, there are a number of exceptions. The bill does not protect documents obtained through criminal conduct or documents needed to prevent certain crimes including death, kidnapping, and sex offenses against minors. Additionally, there is an exception to prevent terrorist activity or harm to national security. Similarly, there are exceptions to the requirement that the media be afforded an opportunity to challenge a subpoena, court order, etc. The federal government can ask the court to delay notice where notice would pose a threat to a criminal investigation, national security investigation, or intelligence gathering.
Revival of Free Flow of Information Act
In May 2013 it was revealed that the Justice Department had subpoenaed the phone records of several Associated Press reporters in connection with a leak investigation. In response to the subsequent controversy that embroiled the White House, the Obama Administration called for the revival of a federal media shield law. Specifically, the Obama Administration reached out to Senator Charles E. Schumer and asked him to reintroduce the Free Flow of Information Act of 2009 that he had supported. Senator Schumer agreed to reintroduce the bill.
- Press Release, Schumer, Specter Announce Agreement with White House on Media Shield Bill, October 30, 2009.
- Charlie Savage, Criticized on Seizure of Records, White House Pushes News Media Shield Law, N.Y. Times, May 15, 2013.
- Sean Sullivan, Rachel Weiner, and Juliet Eilperin, White House Pushes Media Shield Law as Holder Faces Questions on Capitol Hill, Washington Post, May 15, 2013.
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Communications Law and Policy
Jerry Kang and Alan Butler