The Free Flow of Information Act and similar proposed measures would create a federal shield law, similar to those in about thirty states, that would protect reporters from punishment for refusing to disclose their confidential sources in any federal criminal or civil case, unless those authorities meet strict criteria.

The Free Flow of Information Act, which has been regularly introduced in Congress since 2005, is largely a response to the Supreme Court decision in Branzburg v. Hayes (1972) and accompanying cases. These cases decided that reporters were not entitled to special exemption from testifying before grand juries about information they had received from confidential informants.

The 2007 version of the bill, cosponsored in the House by Rick Boucher, D-Va., and Mike Pence, R-Ind., was passed on October 16 by a vote of 398-21 and sent to the Senate. Despite support from Senators Richard G. Lugar, R-Ind., Patrick J. Leahy, D-Vt., and Arlen Specter, R-Pa., it stalled in the second chamber, in part because of opposition by the Department of Justice and a threatened veto by President George W. Bush, who was concerned in part about its possible impact on the war on terrorism.

The Senate version of the bill would prevent federal entities from compelling journalists to provide information uncovered as part of their work unless such entities have “exhausted all reasonable alternative sources” and unless the government can show that significant criminal activity has occurred and that the information about this activity or its perpetrator is essential, such as in cases involving terrorism, death, or bodily harm. The law further seeks to ensure that information solicited by the government will “not be overbroad, unreasonable, or oppressive” and that it will “be narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, non-essential, or speculative information.” The law, which applies to “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain” might provide some protection to bloggers.

Supporters of the bills point to some high-profile federal cases in which news reporters were faced with the decision of revealing their sources or going to jail. Indeed, supporters of shield laws maintain that for reporters to transmit accurate information to the public, they must be able to search freely for information without the threat that the government will force them to reveal confidential sources, thereby making those sources less likely to share information.

Opponents argue that the First Amendment does not entitle members of the press to special privileges against disclosure that do not apply to other citizens.

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