Local Lawmakers Seek Balance In Media Shield Law

Area lawmakers fear that a push for a media shield law may be happening too quickly.

U.S. Sen. Charles Schumer and a bipartisan group of senators recently announced their support for an updated media shield law. If passed, the bill would codify into law and expand upon the recently announced Department of Justice media guidelines.

The original legislation offers legal protection to journalists who are engaged in newsgathering activities. In addition to supporting the original legislation, Schumer’s bill would seek to prevent future administrations from rolling back the DOJ guidelines, incorporating some of them in the legislation.

“The DOJ guidelines were a promising start, but this bill ensures that they can’t be changed on a whim, and goes beyond the guidelines to ensure that we balance our natural security needs against the public’s right to the free flow of information,” Schumer said. “These changes make the bill stronger and should provide added momentum to get it passed.”

The push for the law follows news that the Justice Department had secretly obtained two months of telephone records from more than 100 Associated Press reporters and editors, including work and personal phones.

The shield law would protect the media from revealing information and sources during newsgathering. Additionally, it establishes a legal framework for determining the limited circumstances under which protected information can be subject to compelled disclosure in court, and requires, in most cases, a court to apply a balancing test before compelling disclosure. The balancing test would weigh the public interest in the disclosure versus public interest in newsgathering.

Journalists would have no privilege against the disclosure of information in classified leak cases, in regular confidential information cases or in non-national security cases.

U.S. Rep. Tom Reed has reviewed Schumer’s bill, and questions the balance of it.

“Should the House be presented with a similar bill, my primary focus will be ensuring a fair balance is struck between protecting our national security and making sure proper protections are in place for those who bring us the news,” Reed said. “I am a strong believer in the First Amendment and the valued right to a free press can be honored without hindering public safety, so long as we work to enact careful legislation.”

Reed is not the only one questioning the bill. Chautauqua County Executive Greg Edwards said there is currently much emotion and anxiety between the government and the press which needs to be addressed. However, Edwards is concerned about how the bill came into play.

“I believe this is a matter worthy of review. My concern is, when legislation is pursued immediately following an event like the discovery that the Department of Justice was monitoring the Associated Press’ phone lines and personal accounts, credit cards and those sort of things, this is the time for caution in equal measure with the effort to avoid abuse,” Edwards said. “The bill looks promising in that it’s setting up a legal process for the Department of Justice or other government agencies accessing subpoenas. I think that’s encouraging that there would have to be a process. I think it’s equally encouraging that there’s no institution of an absolute privilege for journalists, because in the right case, and they’ve identified some of their focus, which is terrorism, true national security or to mitigate issues of death or kidnapping. You know, those really, obviously really critical time frame issues.”

Even if Schumer’s bill is passed and it becomes federal law, there is already media law in place in New York state.

According to Assemblyman Andrew Goodell, the law is contained in section 79-H of the New York state Civil Rights law, enacted in 1970 and amended in 1990.

“As it relates to New York, we already have a shield law, and we’ve had it in place for many, many years,” Goodell said. “New York’s shield law is working very well. It does involve a balancing act, because we realize sometimes confidential information may be critical to a defendant in establishing his defense for a crime. Of course, you have constitutional rights of free press, but you also have constitutional rights for a trial by jury.”

If the media shield law goes through, journalists in New York would still be protected under state law. However, the federal law would supercede the New York state law in some cases.

“When the U.S. Constitution was first drafted, of course, we did not have sophisticated means of tracking journalists’ conversations by accessing third-party telephone records or Internet information or any similar needs,” Goodell said. “Those efforts to discover reporters’ confidential sources can directly infringe upon the ability to maintain a free press, which historically has been viewed as a key foundation for a strong democracy.”