UPDATE: Senate Judiciary Panel Approves Shield Law By 13-5 Vote; Full Senate to Decide

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The Senate Judiciary Committee today voted 13-5 in favor of the Free Flow of Information Act of 2013 (S. 987), setting the stage for a full Senate vote on a federal shield law to protect journalists' confidential sources and information.

According to accounts in The Washington Post and Huffington Post, the Committee, which was unable reach a consensus on the bill before summer recess (See "TUOL" post 8/2/13), found a compromise between Sen. Charles Schumer's (D.-N.Y.) broad definition of a journalist and Sen. Dianne Feinstein's (D.-Calif.) narrow interpretation of who should be protected by the federal shield law.

The measure sent to the full Senate covers student journalists and "persons whom a federal judge has decided should be able to avail him or herself of the protections of the privilege, consistent with the interests of justice and the protection of lawful and legitimate newsgathering activities."  Groups such as Wikileaks, would not be shielded under the law.

The measure embraces journalists who had an "employment relationship" for one year within the past 20 years, or three months within the past five years, as well as someone with a "substantial track record" of freelance writing in the past five years. If enacted, the law would not provide an absolute privilege to journalists from having to disclose confidential information in all instances.

Federal Shield Law in Limbo Until the Fall

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The Senate Judiciary Committee this week bolstered a proposed federal shield law, the Free Flow of Information Act of 2013 (S. 987), but failed to muster a final voice vote on the measure before adjourning for Congress' summer recess.

Senators were unable to agree on criteria defining who would be a  journalist eligible for protection from having to reveal confidential sources and information to authorities. Sen. Charles Schumer (D-N.Y.) acknowledged that information-gathering has evolved and favored a broader interpretation of journalist, whereas Sen. Dianne Feinstein (D.-Calif.) was wary of bloggers and WikiLeaks and said the shield law should only cover "real reporters."

The Committee did unanimously consent to a "manager's amendment" that requires a judge to rule on whether a notice of a subpoena to a journalist could be delayed and would require a judge to sign off on a 45-day extension of the original 45-day suspension of notice.

UPDATE: Full Senate to Tackle Proposed Shield Law

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Better late, than never.  The Senate Judiciary Committee voted this week to pass along a proposed federal shield law to the full Senate for consideration.

The measure, which was introduced in February 2009, would protect journalists against having to disclose confidential sources in federal courts. See "TUOL post 11/6/09 for an account of the arduous struggle to move the bill, which is backed by the Obama Administration and a myriad of news organizations, forward.

The Judiciary Committee resolved a final hang-up on the proposed legislation involving the definition of the term journalist. Proposed amendments were voted down, and the committee settled on a definition of a journalist as a person who has the intent to disseminate information to the public, which allows for the inclusion of uncompensated bloggers.

UPDATE: Senate Committee Tables Shield Law Again

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Despite a letter signed by Attorney General Eric Holder and Director of National Intelligence Dennis C. Blair endorsing a revised S.B. 448, the Free Flow of Information Act of 2009, the Senate Judiciary Committee yesterday tabled consideration of the bill, which would protect journalists against being compelled to reveal confidential sources in federal court.

The Senate Committee has been grappling with the measure since April 2009 (see "TUOL" posts 11/2/09, 10/1/09, 9/18/09, 9/16/09). Both Democratic and Republican members of the Committee said more time was needed to consider the compromise bill, which besides White House support, has been endorsed by 70 journalism organizations. The House of Representatives passed its version of the shield law in March 2009.

The failure of the Committee to take up the shield law comes on the heels of Senate Majority Leader Harry Reid hinting that solons may not finalize health reform legislation before 2010.

Apparently, the nation over which the Senate presides is stagnation.

UPDATE: Senate Committee Tackles Modified Federal Shield Law Bill This Week

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The White House and the Senate Judiciary Committee have hashed out their differences concerning S.B. 448, the Free Flow Information Act of 2009, which would create a federal shield law to insulate reporters from having to disclose confidential sources in federal court.

The 19-member committee consisting of 12 Democrats and 7 Republicans is expected to take up the revised measure later this week. The House passed its version of the shield law in March, but the measure has languished in the Senate as the White House sought to limit the instances and scope in which journalists could invoke the protection (see "TUOL" posts 10/1/09, 9/18/09, 9/16/09). Roughly 70 journalism organizations have backed a federal shield law and are being urged to endorse the compromise measure. Thirty-seven states and the District of Columbia have enacted shield laws.

The latest version of S.B. 448 offers protection to  freelance journalists and online journalists, along with news organizations' salaried workers and independent contractors. The proposed legislation also includes a balancing test that would enable a judge to weigh the public interest in forcing disclosure of the identity of a confidential source against the public interest in preserving the confidentiality of the news source.  However, the balancing test would not apply in confidential leak situations provided that the government can demonstrate that removing the protective cloak from a source is vital to prevent or mitigate an act of terrorism or substantial harm to national security. Still, the government could not just make a blanket statement, but would have to reveal specific facts to compel disclosure of the confidential source.

The pressure on journalists to reveal their confidential sources varies depending on whether the underlying case is civil or criminal in nature or involves national security. Roughly 20 reporters have been subpoenaed in federal cases over the past eight years to testify about sources and four have been jailed for refusing to do so.

UPDATE: White House Dents Proposed Federal Shield Law

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The proposed Free Flow of Information Act of 2009, already diluted by Senate amendments, will be positively porous if White House objections to the bill that would create a federal shield law to protect journalists from revealing confidential sources, are incorporated into the measure.

Obama Administration officials want greater flexibility in deciding what qualifies as "national security" and do not want to protect reporters who divulge leaked data concerning national security. Sen. Charles Schumer (D-N.Y.), a principal co-sponsor of the bill along with Sen. Arlen Spector (D-Pa.), eager to move the legislation out of the Senate Judiciary Committee, already has proposed an amendment that would limit protections to individuals working as salaried employees and  independent contractors.


S.B. 448 already has the blessings of the House of Representatives which voted on the bill in March after the House Judiciary Committee gave it its imprimitur.  The Senate Judiciary Committee delayed a scheduled vote on the bill last month (See "TUOL" 9/17/09, 9/18/09). Those who favor a federal shield law claim it will lead to the disclosure of important information if confidential sources are comfortable that their identities will be protected by reporters.


A majority of states have enacted shield laws.

UPDATE: Senate Version of Federal Shield Law 'Stonewalled'

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Yesterday's anticipated vote by the U.S. Senate Judiciary Committee on S.B. 448, the "Free Flow of Information Act of 2009" [see "TUOL" 9/17/09] was derailed as members from both sides of the aisle complained the proposed shield law protecting journalists' confidential sources in federal courts  endangered national security as written.

The measure was endorsed by 70 journalism organizations, but lacked the backing of key senators, including ranking member of the Judiciary Committee, Sen. Jeff Sessions (R.-Ala.), who questioned the need for a shield law given that the Justice Dept. had subpoenaed reporters in only 19 instances from 1992-2006. Sen. Diane Feinstein (D.-Calif.), who chairs the Senate Intelligence Committee, complained the bill's  balancing test, which considers the news media's First Amendment interests on one hand, and national security concerns on the other, was too open to subjective application by judges.

Sen. Patrick Leahy (D.-Vt.) issued a press release angrily condemning the Judiciary Committee's inability to report the legislation that would create a qualified privilege for journalists, blaming the seven Republicans on the 19-member committee for "stonewalling" any consideration of amendments to SB 448 that might have resulted in its passage. The amendments were introduced by the bill's chief sponsor, Sen. Charles Schumer (D.-N.Y.) based on his meeting with Atty. Gen. Eric Holder, whom he claimed voiced a willingness to compromise on the national security balancing test.

The bill has been on the Judiciary Committee's executive agenda for five months, but back and forth negotiatons and debate in the end yielded nothing for the full Senate to consider.

Senate Committee to Vote on Federal Shield Law Thursday

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Senate Bill 448, the "Free Flow of Information Act of 2009," that would move the federal government closer toward adopting a shield law to protect journalists' confidential sources, is expected to be voted on tomorrow by the 19-member Senate Judiciary Committee.

Jeff Sessions (R-Ala.) is the ranking member of the committee, which consists of 12 Democrats and 7 Republicans. Except for Wyoming, every state either has enacted a shield law or by virtue of court decisions, accorded journalists the privilege to protect the identity of confidential sources.

Under the proposed measure, the federal government could not compel a shielded individual to testify or provide documents without first demonstrating by a "preponderance of the evidence," the need for such information. 

The federal shield law would require journalists to identify confidential sources if a court finds disclosure necessary to prevent "terrorist activity or harm to the national security," or "death, kidnapping or substantial bodily harm."

The federal bill does not explicitly shield bloggers, as it defines being engaged in journalism as  "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."