Shield Law Passes Senate Judiciary

Amendments to sunset bill and tighten definition of journalist voted down
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A federal shield law, The Free Flow of Information Act, finally passed the Senate Judiciary Committee Thursday on Committee Chairman Patrick Leahy's 17th attempt to get a vote. But that passage did not come without sometimes heated debate on a string of amendments by Republicans and a pair of Democrats.

Most of those amendments were defeated, and most were proposed by Republican Senator Jon Kyl of Arizona, the bill's most vocal opponent. A carveout was approved for information related to crimes against kids and for information vital to protecting critical infrastructure like the stock market, hospitals and essential utilities.

Among the amendments defeated were ones that would have sunset the bill in 2013, one that would have provided a carve-out for grand jury leaks, and one that would have tightened the definition of journalist.

The bill still must be voted in the full Senate then reconciled with a different version passed in the House. There was talk among Democrats and Republicans on the committee that there could be more changes on the floor, including possibly a further finessing of the definition of journalist, which includes bloggers and freelancers.

The bill gives journalists a qualified protection from being compelled to give up information or identify sources, though with a number of carve-outs for national security, bodily harm and sensitive personal and business information.

The bill tips the balance to the courts to make a determination of when a reporters's privilege is trumped by national security.

The bill had been on the calendar since spring. But it was held up by the Obama administration until a compromise was struck related to the court balancing test, and then by Republicans, who thought the balance was still too far in favor of journalists and who argued the compromise had been between people who already supported the bill, not Republicans with remaining issues.

They continued arguing for narrowing the privilege during an almost three-hour hearing Thursday, but ultimately did not have the votes for most of the fixes. The ones that did mass, said one Republican, were modest and insufficient.

But it was not only Republicans who had problems with the bill.

Senators Diane Feinstein (D-Calif.) and Dick Durbin (-D-Ill.) introduced the amendment to narrow the definition of journalist. They argued that the definition in the bill now covered virtually anyone, including their own press secretaries, and more troubling for Feinstein, hate-mongers like neo-Nazi Web sites.

But Sen. Arlen Specter (D-Pa.) the former Republican chair of the committee, said that there were already ways to go after hate speech, and bill co-sponsor Chuck Schumer (D-N.Y.) said the bill should not distinguish between types of content, ugly as some of it might be.

Feinstein and Kyl said that the intelligence community still had some trouble with the bill, and Alabama Republican Senator Jeff Sessions said that rather than extend reporters a privilege, it granted them a power not granted to others.

If so, it is a power that journalists have been granted in most states either by statute or court precedent, and one broadcasters and journalists would welcome.

"NAB salutes Chairman Leahy and Senators Specter, Schumer and Graham for their commitment to the enactment of a federal media shield law," said National Association of Broadcasters spokesman Dennis Wharton in response to the committee's passage. "Broadcast journalists have a proven track-record of quality journalism, keeping Americans informed with timely investigative reporting on issues of critical importance to their local communities and our nation. NAB looks forward to our continued work with Congress, the White House and our media partners to ensure journalists have the continued ability to report the news without fear of prosecutorial reprisal."

“This is a valuable piece of legislation that provides a greater flow of information to the American public and protects a journalist’s anonymous sources,” said Society of Professional Journalists President Kevin Smith said. “We are enthusiastic about it and its future in the legislative process.”

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