Senate Democrats

S. 2035, the Free Flow of Information Act

Summary and Background

On Monday, July 28, Senate Majority Leader Reid filed a cloture motion on the motion to proceed to S.2035, the Free Flow of Information Act of 2007 (also known as the “federal media shield” or “qualified journalists’ privilege”), a bill to protect journalists from being compelled to disclose their confidential sources unless a federal court determines by a “preponderance of the evidence” that all reasonable alternative sources have been exhausted; the source is essential; and that non-disclosure would be contrary to the public interest, using a balancing test that takes into account the public interest in a free press.

S.2035 was originally sponsored by Senator Specter, Ranking Member of the Senate Judiciary Committee, along with Senators Schumer and Lugar. The bill was reported out of the Senate Judiciary Committee on October 22, 2007. In recent weeks, in an effort to compromise with Administration officials, Senators Specter, Schumer, and Lugar have made adjustments to the committee-passed bill, and a substitute amendment will be offered when the bill is considered on the floor.

The substitute amendment would provide the following exceptions to this qualified privilege: the journalist is an eyewitness to or has engaged in a crime; or information is needed to prevent death, kidnapping, substantial bodily harm, sexual abuse of a minor, or incapacitation or destruction of critical infrastructure. The amendment would also provide that a federal court can compel a journalist to reveal a confidential source if the court determines by a “preponderance of the evidence” that the information would assist in stopping or preventing significant and articulable harm to national security, or relates to a leak of classified information that has or will cause such harm, and that the harm outweighs the public interest in having the information reported.

The high-profile arrests of journalists for refusal to disclose their sources, as well as investigations by the media into Administration wrong-doings, have drawn attention to the need for a federal media shield. S.2035 would create a statutory (as opposed to the current common law) standard that protects both freedom of the press and national security. More than 60 news media outlets and associations, as well as state officials and constitutional scholars support of this bipartisan legislation.

Major Provisions

Section 2: Compelled Disclosure from Covered Persons. The substitute amendment to S.2035 would prohibit a federal entity from compelling a covered person to testify, or produce a document, relating to protected information, unless a federal court determines by a preponderance of the evidence that:

1) the federal entity has exhausted all reasonably known alternative sources of the testimony or document;

2) in a criminal investigation or prosecution it is determined that: