Pass Shield law now

By: E&P Staff

In the past five years, legislation to at last create a federal shield law has not progressed so far as in 2010. The Free Flow of Information Act, S. 448, has cleared the Senate Judiciary Committee and is ready for a vote by the full Senate. Or it would be ready for a vote, that is, if WikiLeaks this summer hadn’t posted tens of thousands of classified documents related to the war in Afghanistan, sending legislators into a panic.
Sen. Dianne Feinstein, D.-Calif., now wants to fiddle with the legislation, introducing new definitions of journalists and, inevitably, weakening its protection.

The problem, say legislative observers and journalist associations including the Society of Professional
Journalists, is that if the shield law isn’t passed by the time the current Congress expires in December the
legislation could languish for another five years.
There are real consequences to delaying the bill, which would provide protection from federal subpoenas against reporters who refuse to identify confidential sources in certain circumstances. And as RonNell Anderson Jones, an associate professor of law at Birmingham University recently told SPJ’s national convention, more than 7,000 state and federal subpoenas were issued to journalists in just the past year alone.

“Delaying or killing this bill isn’t just a blow to journalists covering the federal government; it’s a blow to the American people who will see fewer stories about their government,” says SPJ President Kevin Smith. “Unprotected sources don’t generally share information with the media. Killing this bill is a win for secrecy in government.”

Let’s get one issue out of the way. Nothing in the Free Flow of Information Act as it was passed by the Judiciary Committee last December allows reporters to undermine national security with impunity. Courts would have all the power they need to compel reporters to identify a source in cases where national security is genuinely at issue.
It can also be argued, and the Newspaper Association of America has made the case, that the shield law would make more WikiLeaks types of cases less likely in the future. The reason people seek out off-the-reservation outlets like WikiLeaks is that they don’t feel they can be protected by mainstream news outlets. Without a shield law, and with the increasing number of subpoenas and high-profile pursuit of reporters by prosecutors, who can blame them?

Reacting to the hysteria over the WikiLeaks disclosure, Feinstein is trying to define the WikiLeaks types out of the shield law. But the definition of a journalist that the bill has now – essentially, a person who gathers information with the intent to disseminate to the public – is the sort of flexible encompassing standard that seems best suited to stay relevant even as the media for disseminating information changes in ways we cannot foresee.

After more than a year of bipartisan negotiation, the Free Flow of Information Act is ready to be made law.

Senators, please vote on it now.

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