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From AJR,   September 2010

Shield Law Showdown   

Web exclusive
If a bill allowing reporters to protect confidential sources dies in Congress’ lame-duck session, it may be doomed for a long time.

By David Saleh Rauf
David Saleh Rauf (drauf@ajr.umd.edu) is an AJR editorial assistant     

It's do or die.

That's how media groups describe the state of the long-stalled legislation to create a federal shield law for journalists.

The bill passed the House and has emerged from the Senate Judiciary Committee. But it is on the verge of suffering a familiar fate: death in the Senate. That's where Republicans successfully filibustered the shield law into oblivion in the last Congress.

Now the situation has turned dire, as the clock is ticking on what journalism organizations and First Amendment advocates once saw as their best opportunity ever to push through a shield law. And with the GOP widely projected to make big gains in the House and Senate come November 2, the stakes have never been higher, supporters of the shield law say.

"Our legal counsel has pretty much told us if the Senate loses any more seats to Republicans or if the Democrats lose any more seats to Republicans in the House, it's pretty much a dead issue," says Kevin Smith, the point man on the legislation for the Society of Professional Journalists during his time as the group's president. "The priorities and agendas will be changed. This will not be pushed."

That leaves media groups with roughly four weeks after Congress reconvenes for a lame-duck session on November 15 to get the bill across the finish line before lawmakers break for Christmas. The future makeup of the House and Senate is only a part of the equation that could present obstacles for a shield law next Congress and beyond. As a result of the midterm elections, key committee chairs could also change hands. And, just as important, shield law alliances forged over the last six years could break down after the long, fruitless struggle.

"Right now is probably our best shot at getting it done for a long time," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "We have massaged this thing. Every time we were asked to live with something, we've done it. We just need to get this through."

The drive for a shield law stems from a 1972 U.S. Supreme Court ruling that found that journalists have no constitutional right to protect anonymous sources. But the campaign to enact one took on new urgency 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.

But federal subpoenas are not limited to giant media outlets and cases involving national security, says RonNell Andersen Jones, an associate professor of law at Brigham Young University who studied federal and state subpoenas targeting media outlets in 2007 (see A Flurry of Subpoenas" April/May 2008). Of the roughly 800 federal subpoenas issued to media that year, Jones' research found that prosecutors sought information from newspapers and television stations in every circulation and market size.

The smaller the organization, she says, the quicker it was to fully comply with the subpoena. The result is more and more small and midsize media organizations are backing off stories that could land them in court, she says.

"The significant chill we're seeing..is the financial impact," Jones says. "They're saying we decided not to run the story because we can't afford the legal consequence that follows."

However, many of the federal subpoenas would not be covered under the shield law before the Senate. The bill would strictly give journalists limited protection from having to testify about confidential sources and about the information they provided in both criminal and civil cases.

There are limitations on the protections afforded, and it's unclear if the current version of the shield law would have helped in Miller's case. Supporters of the bill say it is rife with exceptions, including a key provision for national security issues, and situations like Miller's would have to play out in court.

"If national security is even uttered in a courtroom, unless a judge seems to think it's utter BS, I really don't think there's any hope," Dalglish says.

Nonetheless, supporters argue the bill is essential for reporters to protect their sources. Minus that protection, whistleblowers will become increasingly hesitant to step forward and investigative reporting that explores government's inner workings would suffer, SPJ's Smith says.

The bill's uphill prospects have created a sense of desperation among First Amendment champions. That's a stark contrast to the confidence exuded after President Barack Obama was elected and a new Congress convened in January 2009. At last, journalism groups and First Amendment advocates believed, the long-sought shield bill would become law.

Building on progress made during the previous Congress, a coalition of about 60 media organizations, including SPJ, the Newspaper Association of America and the American Society of News Editors, successfully elicited the support of President Obama and Attorney General Eric Holder. ( The Bush administration had been opposed to the legislation.) Those were signs, supporters say, that the legislation had more momentum than ever before in the roughly four decades since media groups first began pressing for a shield law.

The bill passed the House on a voice vote in March 2009. The Senate Judiciary Committee approved it nearly a year ago, but it has languished ever since. Bitter partisanship has stalled hundreds of bills in the Senate this year, and the shield law simply didn't rank high enough on the list of priorities that lawmakers wanted to push prior to the midterm elections.

"There's this perfect storm of absolute constipation in Congress," Dalglish says. "It's just blocked up."

Standing in the way are Republicans long opposed to shield legislation, among them Sens. Jon Kyl (R-Ariz.) and Jeff Sessions (R-Ala.). Some Republicans have characterized the bill as unnecessary and often frame the argument as an attempt by journalists to give themselves unprecedented protection. Though the coalition has some GOP support, shield law votes largely cut along party lines, with Democrats the chief supporters. But members of the media coalition also are pointing the finger at a pair of Democrats – Sens. Dianne Feinstein (D-California) and Dick Durbin (D-Illinois) – who they say are holding up the bill.

The sticking point among the Democratic faction: the definition of a journalist. Some lawmakers feared the original bill was too broad, granting potential protection to just about anyone who claimed to be a journalist. So lawmakers tweaked the legislation and defined a journalist using a two tiered approach, Smith says.

Under a proposed amendment, print and electronic journalists are automatically covered if they are employed by a media entity. Others would have to meet strict criteria, which include working under an established editorial system and demonstrating a professional track record in journalism. It is an attempt, Smith says, to make bloggers "jump through a different hoop."

"We were told by our legal counsel that Feinstein said this is a 'take it or leave proposition,' " Smith says. "We bit the bullet and agreed. In the end, it still covered 95 percent of the journalists who were working."

But some lawmakers "continue to say they have not made up their mind on the definition of a journalist," says Paul Boyle, chief lobbyist for the NAA. "That part of the legislation is not locked down."

The bill's fate has also been complicated by the advent of WikiLeaks. In August, after the secret-leaking Web site released some 77,000 classified documents about the Afghan war, Feinstein "pulled the bill back and made another amendment," Smith says. This summer's WikiLeaks episode hurt the bill's momentum, the coalition says. "It gave more reason to pause and lock this thing down," Boyle says.

WikiLeaks' release last weekend of almost 400,000 classified documents detailing the history of the Iraq war will only exacerbate the situation. The release of so many secret records highlights the tension that always exists in this area, Jones says. "For all the examples we have of confidential sources and information that's benefited our democracy, there will always be examples of confidential information that makes senators nervous," she says.

In a statement, Feinstein rejected the idea that she was holding up the bill and said her WikiLeaks "amendment is ready to go whenever the bill is called up for a vote." But WikiLeaks is a nonissue, the coalition says, because the current language of the bill doesn't cover groups that simply upload sensitive documents to the Web.

With time running out, the coalition is readying a final push to persuade key members of Congress to move the shield law forward. Smith started the process earlier this month when he delivered letters to 24 senators, urging them to pass the bill before the end of the session. Much of the coalition's effort, however, won't begin in earnest until lawmakers return to work.

Once the lame-duck session starts, the shield law will be one of a several hundred bills jockeying for attention. "Slim" is how Dalglish describes its chances. Says the NAA's Boyle, "The odds are really long."

The bill needs unanimous consent to get to the Senate floor for debate. If it gets that far, there's a distinct possibility that Republicans could mount a filibuster, Smith says. To end the filibuster, Democrats would need to muster 60 votes (there are currently 57 Democrats in the Senate and two Independents who caucus with them.) Confronted with a filibuster in the last Congress, supporters of the bill could round up just 51 votes to end it (see "Trying Again" October/November 2008).

Coalition members say the current bill is full of concessions it has made to calm congressional reservations. For example, the coalition has acquiesced on language that allows a judge to compel a reporter to testify in cases when the government makes a convincing argument based on national security that the source's testimony is essential.

The bill also does not protect a reporter's notes from being subpoenaed and makes no provision for quashing subpoenas involving eyewitness testimony or many other subpoenas targeting the media, the coalition says. It simply provides limited protection in cases where the government is seeking confidential information – the most important, according to the coalition, because it would allow reporters to protect whistleblowers.

"Those other subpoenas are going to have to be addressed or quashed using common law. We win some of those, we lose some of those," Dalglish says. "This does give us something for those really truly troublesome subpoenas."

If the bill dies this year and supporters try to revive the campaign in the next Congress, supporters fear it will be diluted even further.

"My concern is this is a death by 1,000 cuts," Boyle says. "Congress begins with the bill we already negotiated over many years, and if there's any further chipping away at it, the media community probably can't support it."