Senate Finally Frees the Press (Kind Of)

The Senate Judiciary Committee yesterday took up a federal reporter shield law for the second time this year, after getting caught up back in July over the definition of a journalist. This time around, however, the committee passed it, marking the first time a shield bill has moved since 2009, when momentum behind a very similar measure died an unfortunate death after the Wikileaks affair. Despite some flaws, it's on balance a positive step toward greater press freedom and government transparency.

The recent revelations that the Justice Department has aggressively investigated members of the news media in several high-profile leaks inquiries have breathed new life into the measure, which would add federal protections on top of the 49 states that already "shield" reporters from having to disclose their sources and work product.

So, how is the bill from a civil liberties point of view? The truth is, despite several unnecessary provisions that weaken its protections, it can't be anything but positive. The status quo is unacceptable. Championed by Sens. Charles Schumer (D-N.Y.) and Lindsey Graham (R-S.C.), the bill has been harried by both Democrats and Republicans on several fronts. That it lives to fight another vote is a very good thing.

The biggest change between this bill and S. 448, which died in 2009, is who's covered by the legislation. In 2009 (prior to Wikileaks being a thing), the bill had a narrow-ish definition of journalist, skewed to the legacy media, but still possibly inclusive of professional bloggers, citizen reporters, and other new media types.

Following Wikileaks, Sen. Dianne Feinstein (D-Calif.) pushed for a much narrower definition that, most troublingly, would not cover anyone "whose principal function, as demonstrated by the totality of such person or entity's work, is to publish primary source documents that have been disclosed to such person or entity without authorization." In other words (they hope): Wikileaks.

But, the new bill, while adopting the crabbed Feinstein definition, also has a safety valve that may, depending on how it's implemented, end up being quite positive. It would allow a judge discretion to expand the scope of the act to anyone if the judge determines it "would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities."

Now, if you actually go and look at Wikileaks (wikileaks.org), it's far from just an indiscriminate site for document dumps. The site's authors collate, curate, and comment on the material they source—much like any other news organization. Maybe wishful thinking, but it's not outside the realm of possibility that a federal judge—looking at how Wikileaks and similar outlets actually operate, not how they're portrayed in the press—will avail these new media sources of the law's protections.

Admittedly, it's far from perfect. It also threatens to open the door to a First Amendment advocate's worst nightmare—inconsistent and possibly selective application of an overly vague rule. But, it's a far sight better than the original anti-Wikileaks definition.

We've also expressed serious concern with several carve-outs in the bill. In particular, the national security exception is fundamentally unnecessary and would likely and inappropriately exempt the AP and James Risen subpoenas, as well as the James Rosen case. But, the bill maintains protections for criminal defendants, allowing them to pierce the privilege when necessary to protect due process. Advocates can also continue to push for improvements as it moves through the Senate and, hopefully, the House.

All in all, this is a good first step toward a more informed populace in America.

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Anonymous

> that may, depending on how it's implemented,

Um, that doesn't sound very reassuring. And given the shady background of Wikileak and Dianne Feinstein's own predilection for strategic leaking of information (http://www.salon.com/2012/07/24/dianne_feinsteins_espionage/) I do not like the sound of this one bit.

Dianne Feinstein wants to define who she thinks is a journalist? Gee, I wonder if her definition won't turn out to be one of our television news talking heads, who literally read whatever copy the CIA et al has thoughtfully provided for them, just toeing the party line.

Anonymous

>"Admittedly, it's far from perfect. It also threatens to open the door to a First Amendment advocate's worst nightmare—inconsistent and possibly selective application of an overly vague rule. But, it's a far sight better than the original anti-Wikileaks definition."

Now wait a second, there's a chance that this bill opens the door to less first amendment freedom? Then how in the world would this possibly be a good bill when it even *potentially* helps to eviscerate yet another of our bill of rights. I don't appreciate the NDAA taking away my right to a fair trial, the NSA taking away my right to privacy, and I absolutely disagree with a bill that makes free speech a priviledge that can be revoked at any time by the likes of Feinstein and Graham. Shame on the ACLU for not hounding this bill for what it is, terrible.

Anonymous

>Admittedly, it's far from perfect. It also threatens to open the door to a First Amendment advocate's worst nightmare—inconsistent and possibly selective application of an overly vague rule. But, it's a far sight better than the original anti-Wikileaks definition.

This bill takes steps towards eviscerating the first amendment, so shame on the ACLU for not hounding it for what it actually is, terrible.

Anonymous

My understanding is that press shield laws come into play infrequently.

I don't understand why the ACLU does not consider the Pandora's Box that would be opened if the definition of "journalist" is expanded so much that individuals (which, under current case law, includes corporations) are allowed to self-declare as journalists.

My expectation would be that we will see an explosion of corporate and criminal lawyers attempting to use the Shield Law in cases where no sane person would think a journalist was involved, but an intervening individual issued a press release or blog post that indirectly entails someone the defendant considers a "source." The potential to gum up the already-complicated process of discovery, let alone the trial process itself, seems enormous.

Further, leaving a vague definition in the law just kicks the can into the courts themselves, and without clear guidance, I submit that it is not possible to determine whether Goldman Sachs "is" or "is not" a journalist once it publishes information.

I am sorry: I do not see this legislation as having First Amendment consequences (prior restraint has nothing to do with court proceedings in which journalists may be forced to divulge sources, and the First Amendment prohibits prior restraint in *all* cases, regardless of any person's status). I see the potential for abuse as huge, whereas the potential benefit to be gained by having a definition of "journalist" that allows individuals to self-nominate themselves for the category is minimal at best.

WikiLeaks is going to be a hard case no matter what. Hard cases make bad law. The important consideration here is who might use this law to their advantage vs. what the law is trying to do. Contrary to all the hype about this story online right now, I don't see how writing a shield law that effectively gives anyone who wants it press shield protection is in anyone's best interests, including the press.

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