Shield Law Bill Passes House Judiciary Committee...Again

Bill would extend qualified privilege from testifying in federal court to journalists and their sources

The House Judiciary Committee has once again passed a federal shield law, which will now go to the full House for a vote, but not without criticism from some Republicans who decried what they saw as conferring privileged status on journalists.

That came in a markup on the bill (H.R. 985), The Free Flow of Information Act, in the House Judiciary Committee Wednesday.

The Free Flow of Information Act (HR 985), which would extend a qualified privilege from testifying in federal court to journalists and their sources, passed overwhelmingly in the House last year (398-21), but got bottled up in the Senate at the end of the session after the White House and the Justice Department strongly opposed it, saying it gave too much protection to leakers and not enough to national security.

The bill would prevent a federal court from compelling testimony from journalists or their sources, but the privilege is not absolute, Rick Boucher (D-VA), the bill's sponsor pointed out. There are exceptions for leaks of classified information that could harm national security, as well as information that could prevent eminent death or bodily harm, as well as carve-outs for disclosure of financial, health, and other personal information. But the exceptions are not absolute, either. A judge would have to balance those against the public's right to the information.

Boucher Wednesday said the bill protects the public's right to know by protecting insiders with a public responsibility to bring information to light that might protect benefit the public or prevent harm.

One of the bill's biggest backers, Indiana Republican Mike Pence, sent a letter to fellow Republicans on the eve of the markup urging them to support the bill.

House Judiciary Committee Chairman John Conyers (D-MI.) had committed to swift action on the the bill and Boucher said Wednesday he was hopeful for passage by the end of the month.

President Barack Obama has generally supported the idea of a shield law, Boucher told B&C in an interview, though he has not endorsed this particular bill's language, a Republican critic of the bill pointed said Wednesday.

Virginia Republican Randy Forbes took aim at the Obama administration over access to the Pentagon budget process. He said Defense Department staffers working on the president's budget had been required to sign a document saying they would not talk about the process, which Forbes said was unprecedented. Forbes asked how Boucher reconciled the desire for the free flow of information with the administration's "gag order" on defense about budgetary items.

Boucher said he was not familiar with the administration directive to that effect, but understood from others that it only applied to the process, and that it would no longer apply after the budget was done.

Forbes countered that that might be too late.

Lamar Smith (R-TX) was also one of the bill's biggest critics, and didn't have a lot of good things to say about journalists, either, though he conceded he was a former reporter himself.

Smith said the First Amendment already protects journalists, and added that "only" 17 journalists have been jailed in the past 25 years for failing to testify before a grand jury. He said journalists don't have trouble exposing corruption and injustice without a shield law, and that protecting anonymous sources should never be more important than saving people and lives.

Iowa Republican Steve King, also no fan of the bill, said he was concerned the bill conferred special status on journalists akin to doctors and lawyers privileges, but that journalists have no license or special education requirements.

Smith also criticized journalist organizations for lobbying for the bill, saying it was "unseemly and possibly unethical" to make phone calls to members or write editorials when it was so obviously in their own self interest, and pointing to the power of the press to editorialize against members who did not support its position. He suggested journalists should be more forthcoming about their lobbying role, and were akin to the lobbyists the media regularly criticize.

One Republican who supports the bill, Bob Goodlatte of Virginia, said he had problems with the bill in the last Congress, but changes to it had brought him around. Those included tightening the definition of journalist and excluding terrorists from that definition.

Bloggers can still qualify, but a covered journalist must derive substantial financial gain or the better part of his livelihood from journalism.

Waxing eloquent, Goodlatte said that if corruption is left to fester in the dark corners of government, it will grow, but can be eliminated under the exposing light of a free press.

"For years, broadcast journalists have demonstrated a commitment to keeping Americans informed with timely investigative reporting on issues of critical importance," said NAB executive VP Dennis Wharton. "Key to this effort is a reporter's ability to retain access to confidential sources without fear of prosecutorial reprisal. NAB thanks Chairman Conyers and Reps. Boucher, Goodlatte and Pence for their continued leadership on this issue, and we look forward to passage by the full House and Senate."