Do or Die for the Shield Law?

Shortly after 9:30 am tomorrow, members of the Senate Judiciary Committee will take their seats in room 226 of the Dirksen building. First they’ll consider the nominations of half dozen federal judges and law enforcement officials.

And then they will get to work on the Free Flow of Information Act—a bill that could either help end unnecessary and chilling journalist subpoenas, do very little to change the status quo, or potentially give the government even more power to compel journalists to testify in some cases. It could be a big day.

“It’s either going to happen tomorrow, or we’re standing on the cusp of a two year setback,” says Kevin Smith, president of the Society of Professional Journalists, one of many press organization that have spent years working for the bill.

As anyone who has spent the summer following the health care debate, making legislation is a messy process where key deliberations, debate, and compromises take place behind closed doors.

So it has been with the shield law, which would require some degree of review by the federal judiciary of executive branch subpoenas of journalists. But as the bill has moved closer to clearing the Judiciary Committee, it has changed to the point that major press organizations have begun to question whether or not the legislation remains worthy of their support.

One key question is who the bill would cover. The committee is currently working from a draft that requires that the journalist be a salaried employee or independent contractor of a news organization. That standard would logically exclude student journalists, unpaid bloggers, and some freelancers and book authors.

Another unresolved issue is what the committee will do in response to apparent demands from the Obama administration that would lessen—to the point of irrelevance in the minds of many of the bill’s press supporters—the independent review required to before subpoenaing journalists in cases where the privileged information is relevant to case that the government asserts involves terrorism or harm to national security.

The Judiciary Committee must stake a position on these issues, among others, before the bill can go any further. And while past committee meetings where the bill has been expected to move to the floor have come and gone without resolution, there’s suspicion that tomorrow could well be the day that some version of the bill is sent to the full floor. (A House version passed in March, and presuming eventual passage in the Senate, the two bills would have to be reconciled in a conference committee.)

Many, including CJR, will be watching closely.

(UPDATE: 10/08: The hearing is underway, and streaming live on the committee’s site. I’ll be tweeting some observations @clinthendler.)

SECOND UPDATE: Looks like the committee spent all its time on the PATRIOT Act mark-up, and no progress was made, one way or the other, on the Free Flow of Information Act.)

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