Press Protections

Since I practice in the areas of First Amendment Law, Privacy, and Publicity, I thought my first post should talk a bit about a topic of much interest in the news lately.

Part of the fallout from the Iraq War has been an investigation into who leaked the name of Valerie Plame. This investigation - conducted by a Special Prosecutor who was ironically called for by Democrats (does this make Ken Starr A-OK again??) - has only resulted in one person sitting in jail: NY Times Reporter Judith Miller. Now, from what I understand, she never wrote anything on the subject, but instead had some knowledge of the players involved. When she refused to disclose that knowledge and testify under oath, she was thrown in jail for contempt.

In tomorrow's NY Times, Bob Dole has an op-ed (written in the first person, so I doubt he really drafted it) supporting passage of a law providing some immunity from this type of situation for journalists via a reporters privilege. He calls for passage of the Lugar-Pence Free Flow of Information Act of 2005 (FFIA).

Generally, I don't support any special statutory right for reporters to protect information. I would like to believe that the judicial system was flexible enough to ascertain on its own, through basic common law principles, when someone needs to be compelled to testify. For the most part, it has worked well over the last 225 years, but I guess the specter of a modern political fight is too much for even our courts.

FFIA does a couple of things. First, it sets forth the situations in which the disclosure of information may be compelled. It then sets aside what information cannot be compelled in any situation, including such important facts in the current war on terror as clues to a potential witnesses identity.

This is a tremendous loophole, one that is big enough for Osama Bin Laden to drive a hydrogen bomb through, and one that undercuts any benefits that may be attached to FFIA. Because this loophole is so large, the bill deserves to be defeated.

Under the provisions of this law, and its tremendously broad definition of covered persons, if an Al Queda cell regullary publishes information on the internet, the Government and interogate cell members and force them to disclose the identity of suicide bombers or even a truck driver carrying a bomb.

There is a concern amongst bloggers that they be treated as equals with the establishment media, and FFIA seems to recognize that everyone under the sun is a potential journalist.

It defines the class of covered people as:

(1) The term `covered person' means--

(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

As you can see, that easily covers the blogs, and I assume that many bloggers will celebrate this proposed statute. However it frightens me as an overbroad expansion of journalism, far beyond the bounds of reason and with slight to nonexistent protections, and will also covers the publishers of Al Queda web pages.