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From AJR,   June/July 2011  issue

Falling on Their Shield   

After a disappointing defeat in the last Congress, proponents of a federal shield law for journalists aren’t expecting victory anytime soon. Thurs. March 3, 2011


By Jeffrey Benzing
Jeffrey Benzing (jbenzing@ajr.umd.edu) is an AJR editorial assistant.     

It's back to square one.

A coalition of media groups determined to enact a federal shield law for journalists is retrenching after the most promising effort so far timed out last December in the hectic lame duck session of the 111th Congress. It may be years — four or five, perhaps more, according to some who have fought for the bill — before the climate is right for another shot at getting a measure passed.

"It's the old adage: You don't want to see how a hot dog is made," says Hagit Limor, president of the Society of Professional Journalists. "What we all learned through this process is just how messy making legislation can be."

Things looked promising when the last Congress convened in January 2009. The bill, which would protect journalists in some cases from being compelled to identify confidential sources in federal court, had the support of President Barack Obama and Attorney General Eric Holder. It sailed through the House in spring 2009 with broad bipartisan support. Then the Senate Judiciary Committee approved the measure.

But it never reached the Senate floor.

"This is a wonderful microcosm, and a textbook example, of how democracy works — and what's wrong with it," says Kevin Smith, immediate past president of SPJ.

Those who fought for the bill cite a number of reasons for its failure. But it's clear an overriding factor was the disagreement over who would be considered a journalist, compounded by fears that an organization like WikiLeaks might be covered.

In the end, a crowded lame-duck agenda kept most senators from ever having their say and meant yet more disappointment for media groups that have long battled for the bill.

Sophia Cope, legislative counsel for the Newspaper Association of America, says she knew some senators were concerned that a shield law would let journalists refuse to respond to subpoenas in matters of national security, particularly if the definition of "journalist" was too broad. The bill would have had an exception for national security matters. And a compromise was hammered out, restricting coverage largely to traditional journalists as opposed to those who gather information but might not have ties to specific media organizations, something media groups said they could grudgingly live with if that's what it took to get a law passed.

But then WikiLeaks released hundreds of thousands of classified documents. Three large dumps — three more nails in the coffin.

"I think by the third WikiLeaks disclosure, at that point, we were trying to take the temperature of folks on the Hill, and they were like, 'No way,'" Cope says.

Even before those disclosures in July, October and November, the bill likely would not have covered a WikiLeaks-type organization, Cope says, and afterward language was added to specifically prevent organizations that dump large numbers of documents from being protected by the bill.

But the damage had already been done.

"People react to WikiLeaks in an almost hysterical way," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, adding that a restricted definition of who could be considered a journalist was offered to the media groups as a "take it or leave it" proposition.

They took it, yet the bill went nowhere.

To Dalglish, a key factor in the shield law's demise was then-Sen. Arlen Specter's decision in April 2009 to bolt the Republican Party to become a Democrat. Specter, who was defeated in his reelection bid in Pennsylvania last November, sponsored the Senate version of the shield law.

"I saw him in action at the Senate Judiciary Committee, where he and [Vermont Democrat] Patrick Leahy basically shut down Jon Kyl [an Arizona Republican and major foe of shield legislation] and just procedurally got that thing moving," Dalglish says. "I think if Specter would have stayed on the Republican side, we might have had something."

Dalglish also thinks the bill was a victim of the contentious fall election campaign and Republican Sharron Angle's challenge of Senate Majority Leader Harry Reid (D-Nev.), which Dalglish believes kept Reid from waging a vigorous fight to get the shield law through a divided Senate.

Accounts vary as to how much of a role Sen. Dianne Feinstein (D-Calif.) had in the bill's collapse, but Smith says he sees her as a major reason that there is no shield law. "If Dianne Feinstein wants to hold up a bill that 300 other people support, she can do it — and she did," Smith says.

Feinstein says she was concerned about whether the protection would be too broad, fearing that a Web site like WikiLeaks could be shielded, along with anyone who regularly tweets about current events.

"I supported the bill when it was reported out of the Judiciary Committee," Feinstein says. "I simply believe we need to do the work to make sure it does not harm the government's ability to protect important and sensitive national security information."

Feinstein's concerns were addressed, Cope says, but doing so took a large chunk of time, as did meeting issues raised by Sen. Dick Durbin (D-Ill.).

And because the 111th Congress is now a closed book, the bill will have to start over again in the House, which supported the bill broadly last session. But the House has 94 new members, and Republicans now control the agenda.

Shield law proponents stress that the bill isn't just about keeping journalists out of jail. Advocates say it's also about keeping channels open for whistle-blowers and other anonymous sources to step up and talk to the press about important issues without risking their jobs, reputations or lives.

The push for a shield law stems back to 1972, when the U.S. Supreme Court ruled that journalists had no constitutional privilege to withhold the names of confidential sources. But the campaign began in earnest after New York Times reporter Judith Miller spent 85 days in jail in 2005 for refusing to identify a confidential government source who leaked the name of CIA operative Valerie Plame.

Despite the years of frustration and disappointment, the shield law coalition, which has more than 60 members, isn't giving up. But it isn't promising results anytime soon.

"You don't want to beat a dead horse," Smith says. "If I showed up on Capitol Hill this next session and started talking about a shield bill, they'd probably look at me and say, 'Why are we even talking about this?'"