Another year has passed with no federal shield law to protect journalists and their sources from overreaching prosecutors. The bill, which seemed at one time this year to be headed toward the president's desk after decades of near- and not-so-near misses, will almost certainly have to wait until next year.
It is in part a victim of the current tussle over health care, which is occupying a lot of time and attention. But it is also a victim of Republican stalling and White House waffling.
The bill has been scheduled 17 times for a markup over the past six months, only to fall victim first to Obama administration concerns about the power it would give judges to adjudicate exceptions to the privilege. There isn't even a privilege yet, and the holdup has been the exceptions to it.
Although Republicans have blocked the bill while professing to be working on a compromise, they are not the only ones with issues. Some Democrats are concerned that extending the definition of “journalist” to cover bloggers and freelancers would open up the protection for anyone, including hate-spewing neo-Nazi sites.
We side with both former Republican Arlen Specter and dyed-in-the-wool Democrat Chuck Schumer on the issue. Specter points out that there are already ways to go after hate speech that a shield law would not shield, and Schumer subscribes to the hold-your-nose theory of speech, which is to say the law should not vary according to the content of the speech.
We also understand the administration's concerns over the degree of discretion judges get in determining what information should not be protected. That's because it means less power for the Justice Department, and nobody likes giving up control.
The rise of blogs and the fall of a lot of formerly employed journalists mean there are a lot of folks who no longer fit the traditional mold that the bill was made for a half-decade ago. But expanding the definition of “journalist” to include those categories is simply squaring it with a new (and for some, scary) reality.
It is time for the Senate to join the House and pass a shield law. And while they are at it, they can follow the House's lead and pass the Daniel Pearl Freedom of the Press Act. The bill, which passed in the House last week, requires the State Department to report annually on press freedom worldwide as part of its review of the state of human rights—yes, journalists are humans, too. The bill is named in honor of Daniel Pearl, the former Wall Street Journal reporter who was murdered while on assignment in Pakistan.
Rep. Mike Pence (R-Ind.), a co-sponsor of both the Pearl and shield bills, last week saluted Pearl and others who “day in and day out, stand in the gap—oftentimes risking their liberty, and as in the case of Daniel Pearl, in fact risking their lives—to do the work of a free and independent press in the world.”
It's time to give them a shield as well as a laurel.