Creating Guidelines For When Journalists Have to Testify in Court (S. 987)

What is S. 987?

(Updated July 18, 2017)

S. 987, a.k.a the Free Flow of Information Act, aims to shield journalists from being called to court (subpoenaed) to disclose information they’ve been given by sources under the condition of anonymity.

The bill empowers member of the media by regulating the terms on which they can be subpoenaed. It also includes a list of exceptions that may lend more power to the federal government, often when they are seeking leads in cases of leaked classified information.

Specifically, this bill would outline who is considered a member of the media and points out where the protections of the media DO NOT apply. In the bill, media are referred to as “covered persons,” defined as:

• Anyone involved in the production (interviewing, observation, editing, or publishing, photographing, recording, etc.) of news reports or news gathering.
• Any supervisor, employer, or subsidiary company of the organization that the covered person was reporting for. 

S. 987 also outlines a list of exceptions in which “covered persons” cannot fight a subpoena: 

• In the case that the party subpoenaing a “covered person” has exhausted all other informational outlets or resources.
• In cases of classified information that jeopardize national security.
• In criminal cases that could identify suspected terrorists.
  
• In any case where information could help be used to solve or mitigate cases relating to death, bodily injury, or kidnappings.
• If the information was gathered during a criminal act, other than an act of leaking classified information.

Argument in favor

Allows the media to protect confidential sources and report on stories that would otherwise be kept under wraps by protecting reporters from having to testify in federal civil court cases.

Argument opposed

This bill only lends security to reporters of major news outlets, and all of the exceptions almost defeat the purpose of helping journalists fight subpoenas.

Impact

Journalists i.e. "covered persons," whistleblowers, anonymous sources, U.S. Court Cases, and The DOJ.

Cost of S. 987

The CBO estimates this bill will cost $500,000 a year between 2014-2017

Additional Info

In Depth:

48 states and the District of Columbia already have laws protecting journalists from having to reveal their confidential sources in court. Such laws are known as “shield laws”. If passed, S. 987 would be the first federal “shield law”.

Several similar bills promoting a federal shield law were brought up within the past decade, but none made it to a final vote.

The Free Flow of Information act comes in wake of one the biggest battles between the Federal Government and the media in history. In 2008, the Department of Justice subpoenaed James Risen, a New York Times reporter, to testify against one of his sources in his book, State of War: The Secret History of the CIA and the Bush Administration. Risen fought the subpoena and lost, and he could now face prison time.

Another current event that makes S. 987 incredibly relevant is the Federal Government's secret seizure the Associated Press’ phone records in 2013. The incident brought up major concerns over the protections of journalists and their sources against federal courts seeking to crackdown on whistleblowers.

Media:

Co-Sponsor Senator Tammy Baldwin’s (D-WI) Press Release

New York Times

Vice News