Senate Judiciary Committee Endorses Federal Shield Bill

The United States Senate Judiciary Committee voted today to endorse a bill that would give journalists a qualified privilege from having to testify in court about their confidential sources and to disclose their news gathering materials. In a 15-2 vote, the committee sent the legislation, S. 2035, to the full Senate, where it is expected to face stiff opposition from Republican senators and the Bush administration. Presiding over the committee session, Chairman Patrick Leahy (D-Vt.) remarked:

The time for needless delay of this legislation has passed. We simply have no idea how many newsworthy stories have gone unwritten and unreported out of fear that a reporter would be forced to reveal a source, or face jail time.

A similar bill in the House of Representatives, H.R. 2102, has been awaiting floor action since August 1. House Speaker Nancy Pelosi said in a speech earlier today that she would bring the bill up for a vote by the end of the year. "This is fundamental to our democracy and fundamental to the security of our country," Pelosi told a meeting of the Associated Press Managing Editors.

The current Senate bill, which contains exemptions for eyewitness accounts of criminal conduct and terrorist and national security information, would extend its protections to persons "engaged in journalism," which section 8(5) of the bill defines as follows:

The term 'journalism' means the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

As I mentioned in a post back in May, this is a vast improvement over the shield bill that circulated last year that would have excluded all protections for anyone who was not a "salaried employee of or independent contractor" of an established news organization. The current legislation drops this requirement and seems to cover anyone who engages in the activities listed above. According to Representative Rick Boucher (D-Va.), who sponsored the House bill, bloggers (and presumably other citizen journalists) would be covered, provided they are engaged in newsgathering.

While more than 50 news organizations, including the Newspaper Association of America, have thrown their support behind the current shield bill, its passage is by no means assured. The Bush administration opposes the bill, claiming it would make it harder to trace the source of leaks that could harm national security. U.S. Attorney Patrick Fitzgerald made that argument today in an op-ed piece in The Washington Post, which ran alongside the Post's own editorial strongly supporting passage of the bill.

Remarkably, the Post scored a bit of a hat trick on this issue with a third piece authored by Theodore Olson, former U.S. Solicitor General, who undercuts the administration's assertions that the bill will harm national security:

The District [of Columbia] and the 49 states with shield laws have experienced no diminution of law enforcement efforts as a result of those laws. The legislation would not give reporters special license beyond the type of common-sense protection we already accord to communications between lawyers and clients, between spouses and in other contexts where we believe some degree of confidentiality furthers societal goals. This legislation is well balanced and long overdue, and it should be enacted.



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