By Kristin Billera

Concurrent bills to pass a federal shield law have been reintroduced in both the House and Senate last week. The Free Flow of Information Act of 2009, however, may not be the law that journalists were hoping it would be.

The shield law proposed in the Senate shields almost nothing. Predictably, and even reasonably, it creates exceptions that journalists will not be protected when matters of national security could be compromised, however, other exceptions take away any teeth the bill might have and make it weak. Journalists and other “covered persons,” could be compelled to testify if the nondisclosure of the information would merely be “contrary to the public interest.” What is in the public’s best interest? Could it be argued that it is in the public’s best interest for the court to find out who was aware that city officials were taking bribes? Yes. Could it be argued that it is in the public’s best interest for anyone connected to a murder case be revealed and brought in for questioning? Yes. Could it be argued that it is in the public’s best interest to find out if teens vandalized a police car? Theoretically, yes. Even with this law on the books, John Taricani, Vanessa Leggett and Josh Wolf could have been sent to jail. The bill says that the court would also take into account the public interest in the free flow of information before compelling disclosure, but when the term “public interest” is vague, the provision could lead to abuse.

The House bill places restrictions on the definitions of journalists. It defines a journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports” news or other information that is in the public’s interest, however, it requires that the newsgathering, writing et cetera must be done “for a substantial portion of the person’s livelihood or for substantial financial gain.” In other words, bloggers, interns, occasional free lance journalists and perhaps, authors who are writing their first books aren’t protected by this law. This means that blogger Wolf, who set the unfortunate record of being the country’s longest jailed journalist, would not be protected by this law.

Wolf expressed reservations to me about both proposed bills: “The number of people who could not be protected by this bill makes it no bill at all,” he said, expressing a preference for the original incarnation of the bill, proposed in 2007. ”I think the most sensible in our political climate shield law is the one originally introduced in the House in 2007 before it got modified to hell and back.”

According to a Congressional Research Services report, the 2007 version of the Free Flow of Information Act contains stronger language about when a journalist could be compelled to testify, stating disclosure must be “necessary to prevent imminent and actual harm to national security;” or “ necessary to prevent imminent death or significant bodily harm.” This version of the bill also compels disclosure when a trade secret has been unlawfully disclosed.

Wolf expressed a slight preference for the Senate bill over the House bill, despite it vagueness on “public interest.” Said Wolf, “Vague laws allow lawyers to make a case, where as specific laws can potentially deny the possibility of rational judgment on an issue.” He also said that he prefers a shield law not be rushed if it won’t be effective in protecting journalism.

Perhaps this time around, Congress will finally figure out how to protect the delicate balance between the public’s interest and the 1st Amendment.

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