September 07, 2006

The Free Flow of Information Act may be a mixed blessing for journalists who wish to refrain from revealing confidential sources, according to a panel discussion held as part of the Society of Professional Journalists’ (SPJ) Annual Meeting.

According to the panelists, which included Jenner & Block Partner Debbie L. Berman, the so-called “shield law” would “give journalists the same protection as clergy, lawyers and psychotherapists,” and, proponents of the Act argued, facilitate open communication of important information to reporters.

The panelists also noted that a federal law protecting journalists would clarify inconsistencies between federal and state laws on this issue and would leave an independent judge to decide when it is necessary for a reporter to divulge information. Currently, the Department of Justice decides when it’s necessary to subpoena a reporter for information.

However, according to the panelists, the Act is not without its flaws.  For instance, Ms. Berman noted that there’s a national security exception to the shield which requires journalists to disclose confidential information when a “public risk” is at stake.  Given the open definition of a “public risk” under the Act, she said that for some journalists, “it could be a disaster.”

Joining Ms. Berman on the panel were Mark Bailen, partner at Baker & Hostetler and legal counsel for SPJ; Paulette Dodson, assistant general counsel, the Tribune Company; Jim Fleissner, Special Assistant United States Attorney, Deputy Special Counsel and professor at Mercer University School of Law; and James Warren, deputy managing editor of The Chicago Tribune.