The lack of a federal shield law

In response to a large number of federal court subpoenas issued to journalists and other online content providers in recent years, media advocates pushed for bipartisan legislation that would have established a federal shield law. Despite these efforts, however, the Free Flow of Information Act failed to reach the Senate floor this past Congressional term, signaling its death knell for the immediate future.

A significant amount of footwork had already been done, and reintroduction of the measure this Congressional term, which began in January 2011 with a markedly different makeup, would require lobbying and negotiation efforts to start anew -- a daunting undertaking as presidential politics begin to take center stage, said media lawyers who worked to push the bill through Congress. As such, it is unlikely the measure will receive any significant amount of attention until January 2013 or later.

Part of this footwork included negotiations with the Obama administration over the balancing test courts would use to weigh First Amendment interests with concerns about national security, and the definition of a “covered person” entitled to invoke the law’s protections.

The House passed this most recent federal shield bill in March 2009, and the Senate Judiciary Committee voted in December 2009 to present the measure to the full Senate. Despite the milestone, senators from both parties continued to express reservations about the legislation, specifically its definition of a journalist, which the approved committee bill defined as a person who has the intent to disseminate information to the public.

Senate sponsors promised they would continue to work with colleagues who wanted to limit the definition to cover an employee of a media outlet (salaried or nonsalaried), exclude those who write anonymously and apply only to information disseminated through a “news medium” -- a definition that would exclude some electronic media.

And the August 2010 publication of 75,000 Afghanistan war documents on foreign website WikiLeaks was perhaps the bill’s final straw. In response, senators began drafting an amendment to expressly exclude websites that publish leaked government documents without editorial content.

Although two sponsors of the Senate bill lost their seats in November’s mid-term elections, chief sponsor Charles Schumer (D-N.Y.) in March 2011 wrote in a letter to the editor of The (Glens Falls, N.Y.) Post-Star that he intends to introduce shield law legislation this Congressional session and work for its passage. A few days later, Schumer’s colleague and bill co-sponsor, Kirsten Gillibrand (D-N.Y.), echoed her vigorous support for the measure.