Attorney General Rob McKenna and Maryland Attorney General Douglas Gansler successfully rallied 39 of their fellow state attorneys general to join them in urging Senate leaders to support the Free Flow of Information Act (S. 2035). The act recognizes a qualified reporter’s privilege and brings federal law in line with the laws of 49 states and the District of Columbia.
“Justice Louis Brandeis famously referred to the important function the states perform in our federal system as laboratories for democracy, testing policy innovations,” the attorneys general wrote in their letter to Senate leaders. “Reporter shield laws, which have been adopted – through either legislation or judicial decision -- in every state but one, must now be viewed as a policy experiment that has been thoroughly validated through successful implementation at the state level.”
The measure has broad bipartisan support. The Senate Judiciary Committee passed S. 2035 on Oct. 4, 2007, by a vote of 15-4 and the House of Representatives passed a similar measure by a vote of 398-21.
“Many of our country’s biggest investigative stories have been based in part on information from confidential sources,” Attorney General Rob McKenna said. “Responsible journalism demands responsible use of such sources. Failing to protect anonymous sources strangles the free flow of information that is life’s breath of democracy.”
Largely modeled after U.S .Department of Justice guidelines, S. 2035 creates a qualified privilege, not an absolute one, establishing specific criteria for a federal court to evaluate when determining whether a reporter should be compelled to disclose confidential information. The Department of Justice’s long-standing guidelines similarly require federal prosecutors to make “all reasonable attempts” to obtain the information from alternative sources and to show that the information sought is “essential” before requiring disclosure of a journalist’s confidential sources.
“An informed public and the preservation of news sources are vitally important in a free society,” McKenna said. “States overwhelmingly favor this policy and it’s time to harmonize federal law with state law on this important subject. Exposing confidential sources protected under state shield laws to discovery under federal law undercuts the public benefit state shield laws provide.”
Attorneys general from the following jurisdictions signed the letter, which will be sent to Senate leaders on July 8 when Congress returns from summer recess: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Guam, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington and West Virginia.
In 2006, McKenna proposed and supported a state reporter shield law in Washington. He signed on to a 2005 amicus brief to the United States Supreme Court urging the court to recognize privilege under Federal Rule of Evidence 501.
Janelle Guthrie, AGO Communications Director, (360) 586-0725