In Washington, seeking a Senate opening – and a vote for the reporter’s shield law

From the Summer 2009 issue of The News Media & The Law, page 24.

Movement has slowed over the past several months on the proposed federal shield law, leaving it unclear whether a bill protecting reporters’ confidential sources in federal court will pass the Senate before the end of the year.

The House of Representatives passed its version of the law, H.R. 985, by a unanimous voice vote in late March. The measure is now in the hands of the Senate Judiciary Committee, which must discuss both the House bill and the Senate’s version, S. 448, before putting the matter to a vote.

But with the committee consumed this summer with the confirmation hearings for Supreme Court nominee Sonia Sotomayor, it is unclear if the Senate will vote on the shield law anytime soon, said Sophia Cope, legislative counsel with the Newspaper Association of America, a group that is leading the lobbying efforts for a shield law.

Even if the law has yet this term to receive the attention of the committee, let alone the full Senate, it has been on the committee’s markup agenda every week through much of the spring. Sen. Patrick Leahy (D-Vt.), the committee chairman, strongly backs the bill, and the concept of a reporter’s privilege, at least, has the support of President Obama and Attorney General Eric Holder.

“After years of debate and countless cases of reporters being held in contempt, fined and even jailed simply for honoring their professional commitment not to publicly reveal their sources,” Leahy said at a June 18 committee meeting, “the time has come to enact a balanced federal shield law.”

At a June 17 oversight hearing, Holder said the Justice Department and the Obama administration favor a shield law, as long as it doesn’t constrain the government’s ability to protect national security. Specifically, Holder said he wants to see an exception built in to allow the government to prosecute people who leak classified information.

Both the House and Senate versions of the bill contain exceptions for national security and terrorism investigations, Cope said. While the NAA and other First Amendment organizations support the bill with the exceptions as they’re written now, Cope said they are waiting to see if the Justice Department will propose different wording that would make it easier for the government to force a reporter to give up confidential sources.

“A lot of leaks are in the public interest,” Cope said. “Our coalition is adamant to have a strong test for those cases. It will come down to specific language and what the burden will be on the government.” The Reporters Committee is part of the media coalition supporting the passage of the bill.

If the White House and Justice Department have suggestions or added language that makes it easier for the government to get the names of leakers, Cope said the coalition will have to discuss whether it would accept and support the changes.

When Leahy spoke about the legislation at the June committee meeting, he criticized those who oppose the bills for fear that a reporter’s privilege would harm national security.

“No one would quibble with the notion that there are circumstances when the [g]overnment can and should have the right to compel information to keep us safe,” Leahy said in his written statement to the committee. “But, many newsworthy stories concerning national security issues — such as the exceptional reporting on the CIA secret prisons and warrantless wiretapping by the National Security Agency — were published with the help of confidential sources, to the great benefit of the public.”

He continued: “There is no evidence of a single circumstance where the privilege caused any harm to national security or to law enforcement.”

There are still differences between the two versions of the law that need to be hammered out, Cope said. For instance, the definition of a journalist differs: In the Senate bill, anyone “engaged in journalism” is protected, while in the House bill only journalists who report for a “substantial portion of the person’s livelihood or for substantial financial gain” are covered.

Additionally, while the Senate bill protects only confidential sources and information, the House bill covers all newsgathering material and sources regardless of whether the journalist promised confidentiality.

Those differences will likely be discussed by the Senate Judiciary Committee when it takes up the bill.