Journalists hoping for federal protection from being held in contempt of court, fined or even jailed for refusing to divulge confidential sources will have to wait a bit longer.
Republicans on the Senate Judiciary Committee blocked any further changes to the bill, specifically a suite of proposed changes agreed to in principle last week that were designed to garner more support.
The Free Flow of Information Act (S. 448) would create a federal shield law that would grant protections to journalists who refuse to reveal confidential sources, even when compelled by a subpoena and the threat of penal action.
Currently, journalists and their sources are only protected by privilege statutes or administrative rules in certain states. There is no such protection at the federal level, according to the Society of Professional Journalists. Last week, 70 media companies and organizations — including the Vermont Press Association — urged the committee to support the bill.
Vermont is one of those states without a media shield law, said Michael Donoghue, executive director of the Vermont Press Association and reporter at the Burlington Free Press.
In general, Vermont judges use a two-pronged test established by a state supreme court ruling when asked to force reporters to testify. First, the information in question must not be obtainable anywhere else, and the information must speak to a person's guilt or innocence, said Donoghue.
"Unfortunately, there have been a couple of cases where the Vermont courts have rendered decisions that could provide a chilling effect on reporters in Vermont doing their duty," said Donoghue. "For 35 years, the system has been working fine, but that's not good enough."
SPJ officials were disheartened by the setback.
“Every day journalists operate in this country without protection for their sources is another day the American public is potentially denied the type of courageous reporting that keeps a watch on government. We hope the Senate does the right thing for its citizens and allows this bill to become law," said SPJ President Kevin Smith in a statement.
Amendments to the bill were being shepherded through the committee by its chairman, Sen. Patrick Leahy (D-VT). A compromise amendment was crafted last week, with the expectation it would be approved today during a committee work session. The compromise language ensured that journalists could not be afforded protection in the event of a national security threat, and that the protection could not be afforded to bloggers.
Leahy expressed disappointment Thursday that the committee was unable to report legislation that would establish a qualified privilege for journalists.
The bipartisan Free Flow of Information Act has been on the Judiciary Committee’s executive agenda for five months and the subject of weeks of debate and months of negotiations.
“I am disappointed that the committee was unable to approve the Free Flow of Information Act,” said Leahy in a statement. “This legislation is supported by more than 70 news media and journalism organizations."
Leahy said he had worked closely with fellow Sens. Charles Schumer (D-NY) and Arlen Specter (D-PA), along with the administration, the intelligence community, and any other interested senator to develop a bipartisan bill to establish a federal shield for reporters.
"Regrettably, Republicans on the Judiciary Committee today missed an opportunity to work constructively to address this legislation," said Leahy.
Noting that today is "Constitution Day", Leahy added, "I had hoped the committee could proceed with this open government legislation. I am committed to reporting a reporters’ shield bill from the Judiciary Committee this year, and I hope all senators will work with us to reach that goal.”
The Judiciary Committee first reported media shield legislation under Leahy’s chairmanship in the 110th Congress.