When Attorney General Jeff Sessions appeared before the House Judiciary Committee on Nov. 14, Rep. Jamie Raskin, D-Maryland, had a direct question.
Raskin asked Sessions, “As Attorney General, will you commit not to prosecute investigative journalists for maintaining the confidentiality of their professional sources?”
Sessions was less than direct in his answer: “I will commit to respecting the role of the press.” And he added, “There are some things the press seems to think they have an absolute right to [that] they don’t have an absolute right to.”
That’s a far cry from President Obama’s Attorney General, Eric Holder, who was no friend of the press either, but who once said, “No reporter will go to jail for doing his job.”
That night after Sessions’ appearance and lack of assurance, Raskin and a Republican colleague, Rep. Jim Jordan of Texas, responded by introducing “The Free Flow of Information Act of 2017.”
This bill would establish a federal shield law for reporters and their sources. A shield law provides a reporter’s privilege protecting journalists from having to reveal confidential sources of information to governmental authorities, except under a number of exceptions.
Currently 49 states and the District of Columbia have a reporter’s privilege, either by statute or in case law. (Wyoming is the outlier). There is no federal counterpart.
The effort behind a federal shield law is nothing new. In fact, there have been several such bills over the last decade or so.
It’s important to note that the proposed privilege is not absolute. Similar to prior bills, the 2017 effort has specific exclusions for national security matters and establishes a balancing test for when “the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”
Like the Raskin-Jordan bill, past “Free Flow of Information Act” proposals have been bipartisan.
In fact, Vice President Mike Pence was a strong proponent of a shield law when he was a Republican congressman from Indiana: He was a co-sponsor for at least one such bill.
The push for a federal shield law came close to success in 2013, passing the House by a wide margin and making it through the Senate Judiciary Committee. But the bill never made it to the Senate floor.