The Judith Miller Act

Congress is considering a national law that would shield journalists from being subpoenaed to testify except under certain circumstances. It is called the Free Flow of Information Act of 2005. I read a bit on this morning that led me through the Blog Herald ( a part of Weblog Empire) and ultimately to Editor & Publisher magazine. E&P quotes the bill’s prime author, Indiana Republican Senator Richard Lugar, as saying bloggers would “probably not” be considered journalists under the act as written, but said the definition is still up for debate.

Lugar spoke Monday before the Inter American Press Association (IAPA). Here is an excerpt from the E&P report :

“As to who is a reporter, this will be a subject of debate as this bill goes farther along,” he (Lugar) said in response to a question from Washington Post Deputy Managing Editor Milton Coleman. “Are bloggers journalists or some of the commercial businesses that you here would probably not consider real journalists? Probably not, but how do you determine who will be included in this bill?”

This morning I visited the Thomas website (the definitive source on federal legislation) to look at what I gather to be the latest version (July 18, 2005) of the proposed law. As I read it, the law say that a federal judge can compel a reporter’s testimony “after providing notice and an opportunity to be heard to the covered person” and finding that the person has evidence in a criminal case that cannot be obtained any other way, or in a case of national security in which “requiring disclosure clearly outweighs the public interest in protecting the free flow of information.”

I don’t understand the bounds of the current federal law so I don’t know whether this codifies the current precedent, advances protections against subpoenas or makes them easier to obtain. I did not see any language in the federal bill that would preempt state shield laws which would offer protections against subpoenas in state legal actions.

According to E&P, “Lugar said he was inspired to write the legislation by the jailing of New York Times reporter Judith Miller.” Lugar also noted that, by writing a law geared to covering mainstream media, the proposal may accord some legal “privilege” not given to other Americans. Here is Lugar’s quote, as reported by E&P:

“I think, very frankly, you can make a case that this is a special boon for reporters, and certainly for their role in freedom of the press,” he said.

My own view is simple. A “covered person” under the act should be any American who publishes or disseminates any communication that is not slanderous or libelous. I don’t care if the publication is a flyer tacked onto a telephone pole, an Internet posting or a story in the New York Times. When the Founders said, “Congress shall make no law … ” I don’t think they left any wiggle room.

Tom Abate
‘Cause if you ain’t Mass Media, you’re Mini Media