Though last week the Supreme Court refused New York Times journalist James Risen’s appeal that he should not be made to testify in a government leak prosecution, efforts to pass a federal media shield law are gathering steam.
On Wednesday, more than 70 media organizations sent a letter to Senate leadership demanding a vote on a law that’s been sitting around since it passed the Judiciary Committee since last September. And late last month, the House approved an amendment proposed by Rep. Alan Grayson of Florida that forbids the Justice Department from spending money to force a journalist to testify about a source.
“I think we’re really close, and the Risen situation really highlights the need for the law,” said David Cuillier, president of the Society of Professional Journalists, one of the signatories on the letter to the Senate. “There might be some senators who are still undecided and still on the fence, but I hope that they’ll now realize this is long overdue.”
There is still contention over the definition of the word journalist, and concerns that any attempt to enshrine reporters’ privilege could make those that don’t fit precisely even more vulnerable. Republican Sen. John Cornyn and many conservative pundits have opposed the bill on the basis it could disadvantage bloggers and other non-traditional journalists. It also has an exception for situations involving future threats to national security.
The news organizations supporting the bill note that it has a “safety valve” for bloggers and others who might slip through the cracks, because it allows a judge to declare someone a covered journalist. “This bill has judicial oversight, that extra person to say that if it quacks like a duck and walks like a duck, then it’s a duck,” Cuillier said.
Slate’s Emily Bazelon wrote last fall that while the bill falls short of absolute protections for anyone involved in disseminating information, “nobody gets a blanket exemption from court orders,” and “it’s better protection against testifying than what we currently have in federal court–nothing.”
By contrast, Grayson’s amendment aims broad. In a statement for the Congressional record, first reported by Secrecy News, Grayson noted that “the term ‘journalism’ describes an act, not a profession,” and for his purposes, Wikileaks founder Julian Assange would be covered. “We need to look forward to the future, to the continually changing way that people publish and provide news online,” said Lauren Doney, communications director for Grayson.
“There’s been a lot of talk and bicameral and bipartisan support for something like this but not a lot of action,” said Doney. “The Senate bill is overdue, but this amendment is an opportunity to obtain the same goal.” How Grayson’s amendment, with its broad definition of journalism, will fare in the Senate is not certain.
A version of the Senate bill first passed in committee in 2009, and has been floating around ever since, with versions surfacing periodically in the House as well.
In the meantime, it’s unclear if the Obama administration will compel Risen to testify, something he has said he will not do. Attorney General Eric Holder, though already perceived as hostile to the press, with the Justice Department’s record number of leak investigations and seizure of Associated Press phone records, has said that under his tenure, “no reporter who is doing his job is going to go to jail.” The White House has voiced support for the Senate shield bill.
While the Supreme Court didn’t end Risen’s saga, another reporter recently benefited from it. Jana Winter, a Fox News reporter who was asked to testify about her sources in the case of the Aurora, CO, movie-theater shooter James Holmes. Colorado approved her subpoena, but New York, where Winter is based, said she was protected by the state’s shield law. The Supreme Court’s decision not to hear an appeal on the matter means Winter won’t have to testify. As CJR reported in December, Winter’s case was an example of how the current patchwork of state shield laws, in absence of federal legislation, can leave reporters in the lurch.
Cora Currier is a freelance journalist focusing on national security. Previously, she was a reporting fellow at ProPublica and on the editorial staff of The New Yorker