First Amendment Issues

The free flow of information to reporters is crucial in order to bring matters of great public importance to light.  Compelling reporters to testify, and in particular, to reveal the identity of a confidential source, will restrict the flow of information to the public on matters of public interest. 

More than 40 reporters have been subpoenaed or questioned about their confidential sources, their notes, and their work product over the last few years in criminal and civil cases in federal court. Ground breaking stories, such as conditions at Walter Reed Army Medical Center , the Abu Ghraib prison scandal and baseball steroid abuse, would not have been possible without confidential sources.  The journalist is becoming the first stop, rather than the last resort , for civil litigants and prosecutors attempting to obtain the identity of confidential sources.

Thirty-four states and the District of Columbia have “shield” laws in force in state courts, and 15 other states have recognized a reporter's privilege as a result of judicial decisions.  In federal courts, however, there is no uniform set of standards to govern when testimony can be sought from reporters.  Additionally, the Department of Justice guidelines for subpoenaing reporters do not apply to special prosecutors or private civil litigants.  As 34 state attorneys general pointed out to the Supreme Court, the lack of a clear standard of federal protection undermines state laws.

To protect the public interest in the free flow of information, while still honoring the public interest in having reporters testify in certain circumstances, Representatives Rick Boucher (D-VA), John Conyers (D-MI), Mike Pence (R-IN), Howard Coble (R-NC), Greg Walden (R-OR) and John Yarmuth (D-KY) introduced H.R. 2102, the “Free Flow of Information Act of 2007” in the House.  S. 2035, a similar federal shield bill, is sponsored by Sens. Arlen Specter (R-PA), Charles Schumer (D-NY), Lindsey Graham (R-SC), Richard Lugar (R-IN), Christopher Dodd (D-CT) and Patrick Leahy (D-VT).

By passing the Free Flow of Information Act, Congress will establish important and balanced ground rules for compelled disclosure of sources and information from reporters seeking to bring forward information on matters of public interest, such as waste, fraud and abuse in government and in the private sector.

NAA urges Congress to pass legislation establishing important and balanced ground rules for compelled disclosure of sources and information from reporters seeking to bring forward information on matters of public interest, such as waste, fraud and abuse in government and in the private sector.

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Fair Housing Council of San Fernando Valley v. Roommate.com: Roommate.com, LLC, operated an Internet roommate locator service. The website allowed users to post information on available housing on a searchable database. Roommate’s terms of service said authors are responsible for content, but users created a profile by selecting options, including age, gender, sexual orientation, and number of children. Some users picked nicknames indicating race, religious identity, or preferences on race, gender or sexual orientation.

The Fair Housing Councils of San Fernando Valley and San Diego filed a complaint with U.S. District Court for the Central District of California alleging that Roommate violated state and federal fair housing laws for making and publishing discriminatory statements indicating preference on race, religion, national origin, gender, familial status, age, sexual orientation, source of income, and disability. Roommate sought summary judgment that it was immune from suit for publication of third party content under section 230 of the Communications Decency Act (CDA), which provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Alternatively, Roommate said the claims were barred by the First Amendment. Read More

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In 2005, NAA, along with eight other organizations representing news media and journalists, formed The Sunshine in Government Initiative to promote federal policies ensuring that government is accessible, accountable, and open to the public. This coalition has become an effective and united voice of media groups for openness in the federal government.

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Newspapers recognize that the government has a duty to preserve national security, and that some “leaks” may cause damage. The newspapers of America have no interest in causing such harm. Newspapers clearly have an obligation to act carefully and responsibly when they become of aware of sensitive national security information that they are considering publishing. Part of this responsibility is the recognition that a free press is vital to a free people. Our nation’s Founding Fathers understood there is a delicate balance between the public’s right to know and the need of the government to protect secrets, and they adopted the First Amendment as a testament to the special importance of a free press to democracy.

Over the years, Congress has enacted a variety of laws to punish disclosure of specific types of classified information, such as the identification of covert agents, information that would injure national defense, and cryptographic information or communication intelligence activity. But over those same years, Congress has resisted demands for a broad “Official Secrets Act” covering classified information generally – through two world wars and the Cold War that followed and even in the face of serious threats to the nation’s security and even before the massive overclassification of information became a practice.

The media plays an important role in providing information to the public so that the government remains accountable to the people it serves. Any effort to impose criminal sanctions for disclosing classified information generally to the press must confront the reality that the daily discussion of possibly classified information, including through leaks, is an important instrument of communication that is employed on a routine basis by officials at every level of government. The motives of those who leak may be honorable or may be dishonorable. And the immediate effect of publication may arguably be harmful or beneficial. But the overall effect of public disclosures concerning the affairs of government is to enhance the people’s ability to understand what the government is doing and to hold the government accountable.

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NAA comments on open access to criminal plea agreements

NAA has submitted comments opposing a proposal of the Judicial Conference of the United States Committee on Court Administration and Case Management to restrict Internet access to criminal plea agreements.

The federal Judiciary is developing policy guidelines for federal courts on the privacy and security implications of public Internet access to documents in criminal case files. Most federal court documents are public, and electronic filing allows them to be viewed and downloaded via the Internet. In September 2007, the federal Judiciary sought public comments on its proposal to restrict or prohibit public Internet access to criminal plea agreements, because the agreements may contain personal or sensitive information identifying government informants.

NAA’s comments state that the First Amendment favors access to criminal plea agreements even via the Internet, and that privacy and security concerns can be addressed without denial of access. Where a plea agreement is accepted in open court and the public is permitted access, Internet access should not be restricted.

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