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Federal Media Shield Law Goes to Full Senate


Published December 10, 2009 at 4:14 p.m.

The Senate Judiciary Committee announced this afternoon it has reached a compromise on legislation to enact a so-called "shield law" that would prevent journalists from being held in contempt of court, fined or jailed for refusing to reveal confidential sources.

Since April, the law has been shepherded through the committee by its chairman, Sen. Patrick Leahy (D-VT).

The media shield legislation was introduced by Sens. Arlen Specter (D-PA) and Chuck Schumer (D-NY) in February. These senators, along with Leahy, have been working with the Obama administration to craft legislation that ensures some sources are not protected — such as in cases involving national security. It also does not protect "terrorists" working as journalists. Damn.

The legislation, officially named "The Free Flow of Information Act," was approved by the committee by a bipartisan vote of 14 to 5.

“The Free Flow of Information Act strikes the right balance among the important objectives of protecting our nation, enforcing our criminal laws and ensuring freedom of expression,” said Leahy. “After years of debate and countless cases of reporters being held in contempt, fined and even jailed for honoring their professional commitment not to publicly reveal their sources, the time has come to enact a balanced federal shield law.”

Forty-nine states and the District of Columbia have codified or common-law protections for confidential source information. Vermont has no state-level shield law for journalists.

Since 2001, five journalists have been sentenced or jailed for refusing to reveal their confidential sources in federal court. Two reporters were sentenced to 18 months in prison, and one reporter faced up to $5000 a day in fines, according to a consortium of media organizations that have been lobbying Congress to adopt the legislation.

"This legislation was too long delayed in committee. I commend Senators Specter and Schumer for working with the Department of Justice, the Office of the Director of National Intelligence, the Office of the White House Counsel, and various media organizations in consultation on this legislation," Leahy added in a statement. "I look forward to the full Senate’s consideration of this important bill.”

In September, the committee adopted several key measures aimed at placating critics of the measure. Immediately afterward, however, Republicans on the committee blocked the legislation.

The committee approved several key amendments to the bill today that would

• Require the government to prove the information it seeks is "essential" to the prosecution or defense in criminal cases;

• Preserve a public-interest balancing test for criminal and civil cases and in most leak cases (other than leaks with the potential for prospective harms); and,

• Alter the definition of journalist as defined in a earlier version of the bill by removing the requirement that the journalist be a salaried employee or independent contractor for a media organization. This could permit freelance authors to be covered by the legislation, as well as journalists publishing on blogs.

A separate amendment that would have specifically excluded bloggers from protection was voted down in committee. Leahy voted against that provision.

The Judiciary Committee first reported media shield legislation under Leahy’s chairmanship in the 110th Congress. It was ultimately filibustered on the Senate floor.