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White House, lawmakers reach compromise on journalist shield bill

[JURIST] The Obama administration, top lawmakers, and news organizations reached an agreement [press release] Friday on legislation that would protect journalists from being forced to reveal their sources in federal court. The compromise version of the Free Flow of Information Act [HR 985 materials] would extend protections to journalists by creating a qualified privilege for those who refuse to disclose confidential sources. It would allow judges to weigh the greater public and national security interests against the need to uncover a journalist's source. The protection would extend to subpoenas for journalists' information as well as any efforts made to investigate phone and Internet records journalists utilized to obtain any information. In an announcement of the compromise, Senator Charles Schumer (D-NY) [official website] said:

We've come a long way in these negotiations and have now reached a compromise that strikes the right balance between national security concerns and the public's right to know. This new version preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens. This agreement should expedite this bill's movement through committee and the full Senate. The negotiated compromise creates a fair standard to protect the public interest, journalists, the news media, bloggers, prosecutors and litigants.

The compromise involves a public interest balancing test [NYT report] for criminal and civil cases. In criminal cases, the burden falls on the journalist to prove that withholding confidential sources is in the public's interest. In non-criminal cases, the burden shifts to the government to prove that forcing the disclosure of a confidential source would outweigh the public interest. The bill will go before the Senate Judiciary Committee [official website] next week.

Last month, the Obama administration informed Congress that it objected [JURIST report] to the proposed legislation based on national security concerns. The US House of Representatives passed the Free Flow of Information Act in late March, days after it was voted out of the House Judiciary Committee [JURIST reports]. The House passed a similar bill in 2007, but it was never voted on by the full Senate, despite passing the Judiciary Committee by a 15-2 vote [JURIST reports]. The bill was first proposed in response to the jail sentence given to Judith Miller, a journalist who would not reveal who provided her with the identity of CIA agent Valerie Plame [JURIST news archive]. Other journalists have also faced contempt charges for refusing to reveal sources. In November, the US Court of Appeals for the District of Columbia vacated [JURIST report] a contempt order [JURIST report] against former USA Today reporter Toni Locy [JURIST news archive], who had refused to reveal government sources for a series of articles she wrote about the 2001 anthrax attacks [JURIST news archive].

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