Media shield law moves forward

Rem Rieder | USA TODAY

A bill that would allow journalists to protect the identity of confidential sources moved forward Thursday after lawmakers reached agreement on the tricky question of just who is a journalist.

The Senate Judiciary Committee, on a 13-5 vote, approved the federal Free Flow of Information Act and sent it to the Senate floor.

The measure has long been sought by journalism organizations and First Amendment advocates to protect reporters from having to choose between breaking a promise to a source and going to jail.

"We're closer than we've ever been before to passing a strong and tough media shield bill," said Sen. Charles Schumer, D-N.Y., a prime mover behind the measure. "Thanks to important bipartisan compromises, we've put together a strong bill that balances the need for national security with that of a free press. This legislation ensures that the tough investigative journalism that holds government accountable will be able to thrive."

The languishing legislation was given new life by the Obama administration. Under fire for what many consider its overly zealous leak investigations, the administration last spring asked Schumer to reintroduce the shield bill. Adding to the momentum was a federal appeals court ruling in July concluding that journalists had no right to keep their sources secret during criminal prosecutions.

Forty-eight states and the District of Columbia have shield laws or precedents protecting sources' confidentiality.

The Senate bill includes exceptions that require journalists in some instances to identify sources when national security is at stake. It also codifies reforms adopted by the Justice Department to better protect journalists in the wake of the leak investigation controversy.

The question of just who is a journalist and should merit protection has become much more complex in the digital era, in which bloggers and others who are not traditional reporters engage in journalistic activities.

Under the committee's compromise, those covered would include someone who has had an employment relationship with a journalism organization for one year within the past 20 years, or three months within the past five years. Also covered are people with "a substantial track record of freelancing" in the past five years and student journalists.

Significantly, the measure also includes a provision covering those who a federal judge decides "should be able to avail him or herself of the protections of the privilege, consistent with the interests of justice and the protection of lawful and legitimate newsgathering activities."

Some members of the committee had sought a narrower determination of who should be covered.

The Reporters Committee for Freedom of the Press, long a leader in the fight for shield legislation, hailed the committee's action. "It's not a perfect bill, but it goes a long way toward ensuring that reporters will be protected from subpoenas for their confidential information and sources," said Gregg Leslie, the committee's legal defense director.

It was also a welcome development at the Newspaper Association of America, another champion of the measure. "As recent events have clearly demonstrated, it is essential to protect both the freedom of the press and our national security through a balanced law that applies across all federal circuits," said NAA President and CEO Caroline Little. "This bill will preserve the integrity of the news gathering process while still ensuring effective law enforcement."