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.