The Register-Herald, Beckley, West Virginia


November 16, 2013

Congress needs to pass Free Flow of Information Act

From The Back Porch column

It’s a woman’s prerogative to change her mind. I have changed mine.

After quietly not supporting efforts to pass a federal reporter shield law for years now, I finally agree with the Society of Professional Journalists — of which I am a member — that it’s time to pass this bill.

My reason for not supporting the bill, versions of which have been clinking around in Congress for at least a decade, is because of its vague definition of who is a journalist. Call me a snob, but I wasn’t sure everyone who writes a blog or does an interview that may lead to a book or not should receive the same protection as bona fide journalists employed by legitimate news organizations.

However, many of those legitimate news organizations now spend an inordinate amount of time and space on the superfluous rich and famous at the cost of covering the real news. And were it not for the people working under the radar of legitimate news organizations to break big stories, Americans would be far less informed than they are.

So the First Amendment is the First Amendment is the First Amendment. Journalists should have no more special privileges.

And it doubly pains me to admit that my hang-up with the bill is the same one had by Sen. Dianne Feinstein, D-Calif. I enjoy hating on Feinstein because she led the effort to pass the Driver’s Privacy Protection Act, which closed public access to the driving records of public transit drivers, airline pilots and others whose poor driving and drinking habits can become relevant to public safety.

The times have changed. Journalism has changed. Technology has the capability to make anyone a journalist. Historically, it has.

So Jay, Joe, David, Shelley and Nick, slap a scarlet H on me for hypocrite, but pass this bill.

It exists in House and Senate versions. The gist is to prevent the government from compelling journalists to release the names of sources or other information received confidentially.

Generally, the burden to compel such information is congruent with that established by the U.S. Supreme Court in its 1972 opinion on three cases that is commonly known as the Branzburg ruling.

There, justices established a three-prong test that reporters should not have to testify unless the government can:

- Show probable cause that the reporter has clearly relevant information on a specific violation of the law.

- Demonstrate that this information cannot be obtained by means that don’t interfere with the First Amendment.

- Demonstrate a compelling and overriding interest in the information.

House Resolution 1962 defines a journalist as “a person who, for financial gain or livelihood, is engaged in journalism.” It exempts a terrorist act, bodily harm and the release of “nonpublic personal information” from the government’s right to compel.

It has 53 sponsors, none of whom is from West Virginia. The bill got dumped in a subcommittee June 14.

Senate Bill 987 defines a journalist as someone who was a regular employee of a news organization or had the intent to distribute information through the media on the date the information was received. It also covers campus journalists. It exempts information related to death, kidnapping, bodily harm, sexual crimes against children, destruction or damage to infrastructure and terrorist acts.

Of its 20 sponsors, none is from West Virginia. This bill is moving, though. On Nov. 6, it was placed on the Senate legislative calendar.

The reason a shield law is important is to protect those who gather and disseminate information in the public’s interest from being locked away in federal detention centers, which, in essence, is a violation of the First and Fifth amendments.

Yes, right now in this country, journalists who have information that the government wants can get locked away Gitmo-style like suspected terrorists.

Think it can’t happen?

New York Times reporter Judith Miller spent 85 days in jail for refusing to testify before a grand jury.

Texas freelance writer Vaness Leggett spent 168 days behind bars for refusing to reveal a source.

California journalist Josh Wolf spent 226 days in prison for refusing to release videotapes.

West Virginia’s congressional members — Sens. Jay Rockefeller and Joe Manchin and Reps. Nick Rahall, Shelley Moore Capito and David McKinley — need to act now.

— Young is a Register-Herald columnist. E-mail:

© 2013 by Nerissa Young

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