Currently, 40 states and the District of Columbia have shield laws. Shield laws are important because they safeguard the public’s right to know by protecting the rights of journalists and their use of confidential sources. However the states’ protection doesn’t apply when federal law is at issue. Press-citizen.com’s article entitled, Our View – Time for Congress To Pass a Federal Shield Law This Year, cites 2 significant examples: “And that means many important national stories — like that of the disgraceful treatment of wounded soldiers at the Army’s Walter Reed hospital or that of the abuse of prisoners at Iraq’s Abu Ghraib prison — leave reporters and editors at the mercy of prosecutors and judges who want the names of sources.”

Last month, U.S. Congressman Mike Pence reintroduced H.R., 2932, the Free Flow of Information Act of 2011. Also known as the Federal Media Shield Bill, this bill would establish limited federal protection from prosecutors and courts attempting to compel “covered” journalists to disclose confidential sources. The bill, authored by Pence six years ago, passed in the House of Representatives twice in 2007 and 2009; then died on the Senate floor. In 2009, while in the Senate, Barack Obama became the first U.S. president to endorse a federal shield law.

Opponents of the shield law argue that it will damage the federal government’s ability to protect national security. However, the Free Flow of Information Act of 2011 provides exceptions to the shield law for national security, the prevention of death or bodily harm, and information that is deemed essential in a criminal case or critical in a civil suit. Others argue that shield law’s exceptions negate the substance of the bill. Additionally they argue that the shield law is too weak, as evidenced by its narrow definition of “covered” journalists. The bill defines a “covered” journalist as someone who regularly reports and writes for a substantial portion of the person’s livelihood or for substantial financial gain. Thus, excluding a majority of bloggers, whom may be in a better position to report, but do not write for financial gain. Still, the Free Flow of Information Act of 2011 is better than the absence of a federal shield law. In a speech to the National Conference of Editorial Writers Convention, Pence asserted that “Compelling reporters to testify, and in particular, compelling them to reveal the identity of their confidential sources, is a detriment to the public interest. Without the promise of confidentiality, many important conduits of information about our government will be shut down.”

Please read Jason M. Shepard’s article, Bloggers after the Shield: Defining Journalism in Privilege Law, to learn more about a federal shield law and its applicability to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.