The Shield after Senate Judiciary

A victory was notched, but the battle’s not won

Last Thursday, the journalism organizations at work on a shield bill won two victories in quick succession.

In just about five minutes, the Senate Judiciary Committee rejected an amendment that would have restricted the journalists and writers eligible for the shield’s protections, and then voted to report the bill to the Senate floor.

While the final stage of the bill’s journey through the Senate Judiciary Committee passed rather quickly, getting to this point took at least five years of arduous work—and there’s still a long way to go before journalists have some statutory protection from being forced to testify in certain federal cases.

The drama at last week’s Senate Judiciary Committee meeting focused on an amendment, offered by committee members Dianne Feinstein and Dick Durbin, that would have restricted the bill’s definition of a journalist.

“We knew the definition has been a sticking point for those two senators,” says Sophia Cope, the legislative counsel at the Newspaper Association of America, which has been leading the lobbying effort on behalf of a seventy-one member coalition of press groups.

The coalition has generally favored definitions that closely hew to the standards established by von Bulow v. von Bulow, a 1987 ruling by the Second Circuit that recognized a journalist’s limited immunity from forced testimony. Courts in the Second Circuit, when confronted with a person hoping to avoid testimony by claiming the privilege, ask questions like whether they regularly collect and disseminate information of public interest, and not questions about who they work for or how much they get paid.

Supporters contend that such a functional definition is valuable because it is financially, medium, and technology neutral, and better able to fit an industry changing at a rate of speed that sluggish legislatures couldn’t hope to match.

When Senators Chuck Schumer and Arlen Specter, who have worked closely with the journalists’ coalition, introduced the bill to this year’s Senate, it adhered to a Von Bulow-like functional definition.

According to Cope, when Schumer approached Senator Dianne Feinstein—who, in addition to being a member of Senate Judiciary, chairs the body’s intelligence committee—she expressed reservations. Publicly, Feinstein has made no secret of her worries that early versions of the bill went too far in shielding journalists who had knowledge of national security related information, and in broadly defining who qualified as a journalist. (At a November hearing, Feinstein said the definition “bothers me somewhat. It is so wide open.”)

After discussions with Senator Feinstein, Schumer agreed to revise the definition. The bill before the Judiciary Committee briefly included some financial tests, which would have likely limited the bill’s protections to certain categories of paid journalists.

But nearly every bit of the bill went up for grabs this fall, when the White House unexpectedly voiced its opposition to the bill unless significant changes were made. (The President had co-sponsored of a nearly identical version of the bill as a senator.) The White House wanted greater power to force testimony from journalists in matters related to national security, and the bill’s proponents made significant concessions on that point in a compromise version. But in a move that made those changes easier for the journalists’ coalition to swallow, the broader Von Bulow-style definition was restored.

In November and December committee meetings, it was clear that Feinstein was unhappy with the definitional shift. In last week’s hearing, she nearly accused Schumer of a betrayal, saying that she thought they’d come to an agreement on the definition, only to see it changed before mark-up. The day before a vital December 3 committee meeting, where passage out of committee looked possible, DailyKos and Nieman Journalism Lab broke the story that Feinstein, along with Durbin, would introduce an amendment that would tighten the definition.

The amendment (pdf) would have required that journalists seeking the shield’s protection be employees or contractees of entities that own traditional outlets. This standard could have excluded a wide range of writers who might find themselves on the sharp end of a subpoena: freelancers working without contracts, student journalists, bloggers, and so on. It was unclear if the bill would include salaried employees of online-only outlets.

Over the course of the next week, Cope and Paul Boyle, another NAA lobbyist, discussed the amendment with Durbin and Feinstein’s staff, giving them feedback on the bill and suggesting changes that would have captured some categories of writers and journalists who would have likely been excluded under the amendment.

The pair then introduced a modified amendment (pdf), which explicitly included news Web sites and student journalists. It also introduced a look-back mechanism that would provide coverage for anyone who held a formal news dissemination gig for six months out of the two years previous to receiving the information the prosecutor sought, a move that would have protected many laid-off, retired, or intermittently employed journalists working without contracts.

Despite the modifications, Durbin and Feinstein didn’t go far enough to slake journalists’ opposition. When Cope and Boyle presented the coalition with the modified amendments, the coalition strongly objected to details in their amendment that left some worried—like a section that made it unclear if reporters who only rely on documents for their stories would be protected if they were to one day take a phone call that became a subject of a subpoena. The coalition was also troubled by a provision which would have left pseudonymous and anonymous writers unprotected—a class that would have presumably excluded editorial writers.

“It’s these nuanced things where people were saying this is too much for our coalition to be able to support,” says Cope.

The coalition was willing to continue to work with Durbin and Feinstein on some amendment that might refine the definition to their satisfaction. But as the next and likely final committee meeting on the bill loomed, there simply wasn’t time.

“The markup came in the middle of the negotiation,” says Cope. “They wanted to bring the debate up in committee.”

When Feinstein introduced this modified amendment on Thursday, she said that it had earned the support of the coalitions’ lobbyists, but had been rejected by the coalition itself. But Cope says that they never had that sort of agreement.

“What we were trying to do was try to provide some feedback there. We were always, always, always clear with her staff that we have to go back to the coalition to get support,” says Cope.

At Thursday’s hearing, after the committee agreed to eliminate the shield law’s protections for subpoenas seeking certain information on child sex crimes, critical infrastructure, and weapons of mass destruction, Feinstein introduced the modified amendment. After Senator Ben Cardin of Maryland voiced editorialist-related concerns, Durbin struck the portion limiting protection to pseudonymous and anonymous writers. Even so, Senators Schmuer and Specter argued vociferously against it, and when the vote came, the amendment failed, with no other committee Democrats joining with the amendment’s sponsors.

About five minutes later, the full bill, its functional test preserved, passed the committee. Even though her amendment had failed, Feinstein voted for the bill. Durbin, who is the Senate’s majority whip, did not.

The defeat of this amendment does not guarantee that a shield law will reach the books with a Von Bulow-like test preserved. The House’s already-passed bill does include a financial test, requiring that the person practice journalism for “a substantial portion” of their “livelihood or for substantial financial gain.” If the Senate’s definition remains unchanged going forward, a conference committee will be forced to reconcile that difference.

But there’s no guarantee that the definition won’t change before any possible Senate passage—even before it reaches the full Senate floor. As Thursday’s Judiciary meeting wrapped up, Schumer approached Feinstein, saying “I do want to sit down with you and work this out.” And Senator Kyl—who, throughout the process, introduced amendments that would have weakened the bill—warned that “we have not heard the last of the controversy” about the bill’s definition of a journalist, perhaps hinting at a drive to introduce a Feinstein-like or even more restrictive amendment during debate on the full Senate floor.

Given the Senate’s jammed schedule, that debate could be some time away.

“Obviously health care is a huge operation, and we’re hearing that immigration might pop up again,” says Cope. “From our perspective, we’d like to get it to the floor by the spring.”

That leaves a couple of months for the coalition to brief senators who are less familiar with the bill, gird against damaging amendments, and prepare for a floor vote that has been years in coming.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.