UPDATE: Senate Committee Tackles Modified Federal Shield Law Bill This Week

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The White House and the Senate Judiciary Committee have hashed out their differences concerning S.B. 448, the Free Flow Information Act of 2009, which would create a federal shield law to insulate reporters from having to disclose confidential sources in federal court.

The 19-member committee consisting of 12 Democrats and 7 Republicans is expected to take up the revised measure later this week. The House passed its version of the shield law in March, but the measure has languished in the Senate as the White House sought to limit the instances and scope in which journalists could invoke the protection (see "TUOL" posts 10/1/09, 9/18/09, 9/16/09). Roughly 70 journalism organizations have backed a federal shield law and are being urged to endorse the compromise measure. Thirty-seven states and the District of Columbia have enacted shield laws.

The latest version of S.B. 448 offers protection to  freelance journalists and online journalists, along with news organizations' salaried workers and independent contractors. The proposed legislation also includes a balancing test that would enable a judge to weigh the public interest in forcing disclosure of the identity of a confidential source against the public interest in preserving the confidentiality of the news source.  However, the balancing test would not apply in confidential leak situations provided that the government can demonstrate that removing the protective cloak from a source is vital to prevent or mitigate an act of terrorism or substantial harm to national security. Still, the government could not just make a blanket statement, but would have to reveal specific facts to compel disclosure of the confidential source.

The pressure on journalists to reveal their confidential sources varies depending on whether the underlying case is civil or criminal in nature or involves national security. Roughly 20 reporters have been subpoenaed in federal cases over the past eight years to testify about sources and four have been jailed for refusing to do so.