There is still a lot of work to be done to pass a federal shield law. We were hoping that the Senate Judiciary Committee would move the bill at its Aug. 1 business meeting, but S 987 was quickly bogged down in a time crunch that was intensified by the committee's attention to judicial nominees and some conflict over the definition of a "covered person" (i.e. a journalist).
The entire shield-law related portion of the Aug. 1 markup lasted a scant 10 minutes. Sen. Charles Schumer, D-N.Y., moved forward his substitute to S 987, which incorporates several amendments that strengthen the protections offered to journalists.
Those amendments were accepted, but the bill as a whole did not move forward in the face of concerns raised by Sens. Diane Feinstein, D-Calf., and Richard Durbin, D-Ill., regarding the definition of a journalist. The current definition primarily looks at whether the person invoking the privilege was acting as a journalist when collecting the information in question. Feinstein and Durbin sought to replace the current definition with their own, which melds that function-based test with a status-based test. The status-based test also requires the judge to look at the employer of the person invoking the privilege.
We find this test entirely too limiting and likely to keep deserving journalists from receiving the protections of the Free Flow of Information Act. See the language of Schumer's definition here. See the language of Feinstein's and Durbin's definition here. View a comparison here.
Beyond the language itself, one must consider Feinstein's and Durbin's definition of a journalist or journalism inferior to Schumer's definition of a "covered person" because it could be viewed as constitutionally suspect. During the markup, Feinstein said that her definition is intended to ensure that someone who is a journalist has "bona fide credentials" and is a "real reporter." She noted that other privileges found in the law, including the attorney-client privilege and the marital privilege, are backed by legal standards and don't allow anyone who dabbles in law to claim the privilege.
But this is a very dangerous statement from my perspective because she's effectively asking for some kind of licensing-type standard to be applied. Although this might be fine for the attorney-client privilege, where there is a licensing test required, and for the marital privilege, where there is a legal definition of marriage in state laws, there is obviously no licensing-type standard for a journalist. Such a standard would be inconsistent with the First Amendment. I'm not sure whether anyone -- least of all Feinstein -- could define a "real reporter" in a way that satisfies ASNE, its members or the Founding Fathers when writing the First Amendment.
Recognizing that the committee had run out of time for the day, Sen. Patrick Leahy, D-Vt., held S 987 to the committee's next session in September. He expressed his hope that judiciary committee members would work together during the August recess to whittle the issues down to two or three amendments. Sen. Leahy also said that his goal is for everyone to be heard so that "when we do bring a bill out of here -- and we will -- it will be something that can pass the U.S. Senate."
ASNE and other media organizations and companies supporting the Free Flow of Information Act have about a month to work with committee members to ensure committee and, ultimately, Senate, passage. We are expecting several other amendments beyond those introduced by Feinstein and Durbin. For instance, Sen. Jeff Sessions, R-Ala., introduced 27 amendments to S 987, and Sen. John Cornyn, R-Texas, introduced eight amendments to S 987. However, these would all weaken the bill in our estimation.