After Debating Definition of ‘Journalist,’ Senate Panel Passes Shield Law
By David Stout | September 12, 2013 2:04 pm

After a spirited debate over who deserves to be called a “journalist,” the Senate Judiciary Committee on Thursday endorsed a law meant to restrict government investigations of reporters who rely on information from confidential sources.

By a 13-to-5 vote, the panel voted to send the Free Flow of Information Act to the full Senate for debate. The committee vote was not a surprise, since the panel endorsed the legislation several weeks ago (see Main Justice’s report) and reconvened on Thursday to consider several Republican-sponsored amendments, all of which were defeated.

“I was brought up in a family that thought the First Amendment was probably the most important part of the Constitution,” said Sen. Patrick J. Leahy (D-Vt.), the committee chairman. “My parents owned a printing business.  The First Amendment was a touchstone to them, and it is to me. This bill carefully balances the need to protect confidential source information with the need to protect law enforcement and national security interests, so that we can better protect the American people’s right to know.”

Too often, Leahy said, high government officials have recognized a blunder or transgression and reacted by saying in effect, “Wow! We’ve got a real screw-up here. Let’s classify it!”

The bill would put into law recently revised Department of Justice guidelines for investigations involving journalists and information pertaining to national security. The legislation, which has the support of the DOJ and the White House and is believed to be backed by a large number of lawmakers from both parties on Capitol Hill, comes as several journalists are under severe pressure to disclose who leaked confidential information to them.

As the committee arguments made clear, the debate over how to balance national security with the public’s right to know is sure to remain in American politics. Moreover, in this fast-changing world of the Internet, Twitter and bloggers, the very concept of “journalism” is sure to be debated.

“What is a journalist?” Sen. Richard Durbin (D-Ill.) asked, somewhat rhetorically. “We spent four years on this.” He was alluding to the fact that the Judiciary Committee passed a similar bill in 2009, but the legislation stalled over the furor over the WikiLeaks disclosures of troves of classified government information. Since then, the ranks of bloggers have only increased.

Sen. Dianne Feinstein (D.-Calif.) offered a crucial amendment, which was approved before the final committee vote, meant to define a “journalist” as someone with legitimate credentials working for a bona fide news organization rather than, as she put it, “a 17-year-old who drops out of high school” and sets up a blog.

“It’s hardly a perfect solution,” said Sen. Charles E. Schumer (D-N.Y.), a principal backer of the bill, who had differed earlier with Feinstein on how exactly to define a journalist. “There is no perfect solution.” Alluding to a new breed of “citizen bloggers,” Schumer said, “Some are legitimate journalists. Some are not.” Schumer said architects of the bill took great pains to address the needs of law enforcement and national security.

But Sen. Jeff Sessions (R-Ala.) was sharply critical of the legislation, asserting that it would allow some people to “violate the law with impunity” when they mishandle classified information, and would put too much burden on judges who would be asked to decide what should be properly classified.

Sessions said he feared that the law would perversely protect “agents of a foreign power” and spies and could undermine vital national security interests. Nor, Sessions insisted, should he be viewed as some kind of press scold. He recalled that, when he was a U.S. Attorney in Alabama two decades ago, he served a subpoena on a local journalist, then withdrew it after double-checking the law and conferring with the journalist. “I was wrong,” Sessions said.

And Sen. John Cornyn (R-Texas), who was himself a judge in the Lone Star State, found attempts to define “journalist” way too much like government licensing of reporters, a concept he said was “repugnant.” Nor, he said, should a journalist have any “privilege” to be exempted from cooperating with “legitimate law enforcement investigations.”

Many states already have press-shield laws similar to the one the Judiciary Committee endorsed — a fact that did not change Sessions’ reservations about the bill. “States don’t deal with national security issues. We do.”

Besides Sessions and Cornyn, those voting against the bill were Sens. Mike Lee of Utah, Jeff Flake of Arizona and Ted Cruz of Texas, all Republicans.

The three Republicans who joined all 10 Democrats in voting “yes” were Sens. Charles Grassley of Iowa, the ranking member; Lindsey Graham of South Carolina and Orrin Hatch of Utah. Grassley, who has been a frequent critic of the DOJ on a variety of issues, called the legislation “a needed step in the right direction.”

Perhaps the surest prediction was offered by Schumer, who acknowledged the never-ending tug-of-war on government secrets and those who try to pry them out: “We know that the pendulum is going to swing.”

The Society of Professional Journalists expressed satisfaction over Thursday’s committee action. “This was a monumental step toward protecting journalists from overly aggressive federal agencies who would bankrupt or jail journalists for just doing their jobs,” said David Cuillier, president of SPJ. “Now I hope the Senate and House approve the bill so journalists report without threat of prison.”

“Defining ‘journalist’ is tricky business, particularly since anyone has a right to commit acts of journalism in this country,” Cuillier said. “But the reality is government leakers and sources expose wrongdoing by seeking out working journalists, not working baristas or chiropractors. In this country, problems exposed are problems solved, and we are confident that this definition will give journalists the protection they so desperately need.”

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