HR 2102, also known as the “Free Flow of Information Act” passed the House of Representatives by a vote of 398-21— a margin that even the bill’s supporters must admit exceeds their wildest dreams.
This represents the farthest progress to date for any attempt to enact a federal shield bill — legislation to create a reporter’s privilege applicable in federal proceedings. The bill would protect reporters from being compelled to testify in federal court and administrative proceedings except in very limited circumstances. It modifies the qualified privilege that exists in many states, with additional provisions specifically applicable to unique issues faced by federal authorities, such as situations where national security or the life or safety of an individual would be adversely affected if the reporter is not required to testify, as well as those situations in which a reporter’s testimony is necessary to identify the leaker of trade secrets, personal medical information covered by the Health Insurance Portability and Accountability Act (“HIPPA”) or financial information covered by the Gramm-Leach-Bliley Act. It also requires a court to engage in a balancing test before compelling a reporter to testify; the court must consider the public interest in requiring the reporter to testify against the interest in protecting a free press in that specific instance.
Three amendments were accepted on the House floor and included in the version which was passed yesterday. These amendments, which bring HR 2102 closer into line with the Senate version of the bill (S 2035) :
- Change the definition of “journalism” to protect only those persons who are engaged in journalism as a substantial part of their livelihood or substantially for financial gain and to exclude those persons and organizations that are on the official terrorist watch list.
- Limit the application of the privilege in certain situations where the journalist is an eyewitness to a crime or tortuous conduct while still retaining fully applicability of the privilege where the crime is the disclosure of a prohibited document or information.
- Require testimony from a journalist who has received properly classified information, the disclosure of which could lead to significant and articulable harm to national security.
The 398-21 vote is especially important in light of a Statement of Administration Policy released just before the Floor Vote occurred in which the White House strongly threatened to veto this legislation if it passes the Senate. Of course, Senate passage is itself uncertain given the expressed opposition of several Senators, any one of which could place a hold on the bill that could doom its chances for a Floor vote.