Last summer, supporters were confident that at long last a federal shield law for journalists would be enacted.
After a number of false starts, they were convinced that a measure to ensure that journalists wouldn’t have to choose between protecting confidential sources and going to jail would make it over the finish line.
The key factor was widespread revulsion at the Obama administration’s treatment of journalists in overly zealous leak investigations. In September, by a 13-5 vote, the Senate Judiciary Committee approved the bill.
Since then, nothing. And news media organizations and First Amendment groups backing the bill fear the momentum of the summer of 2013 may have waned.
That would be bad. It’s important legislation that’s vital not only to journalists but, more important, to American citizens.
Confidential sources can be problematic. The transparency of attaching a name to information is obviously preferable. But in some cases, when sources may put their lives in jeopardy or risk losing their jobs by revealing information that’s critical to the public interest, anonymity is a defensible cost of doing business. And a journalist should be able to protect that confidentiality without heading to the slammer.
This is hardly an academic debate. Last July, the U.S. Court of Appeals for the 4th Circuit ruled that New York Times reporter James Risen would have to testify in the prosecution of former CIA analyst Jeffrey Sterling.
If the Supreme Court rejects Risen’s appeal, the journalist will have to pick between giving up the source or heading to prison, as then-New York Times reporter Judith Miller did for 85 days in 2005.
Last July, Senate Judiciary Committee Chairman Charles Schumer, D-N.Y., assured me that the measure would “become law relatively quickly, by congressional standards.” When I asked Schumer spokesman Matt House this past week if his boss was still “confident,” he responded, “We remain hopeful it will pass this year.” Which is not quite the same thing.
Everyone seems to agree that more than 50 senators, a majority, are in favor. The problem, as Kevin Goldberg, legal counsel for the American Society of News Editors, points out, is that’s not good enough these days. You need 60 votes to cut off debate if opponents try to block a measure.
Goldberg says the leadership wants to make sure those 60 votes are there. But finding out has been a challenge. (ASNE is a key part of the coalition of groups pushing the shield law).
Support tends to crest when something happens that underscores the urgency of the measure, as was the case last summer. But with time that support ebbs. That’s why quick action at a flashpoint is key. The next such moment may come if the Supreme Court rejects Risen’s appeal.
It’s not as if this is a radical idea. Forty-eight states and the District of Columbia have similar protection for journalists.
It’s hardly a get-out-of-jail-free card. The law includes a balancing test, which means in some instances national security concerns will trump the shield law and a journalist will be required to testify.
And the Judiciary Committee did a good job sorting out who is covered, a thorny issue in an era in which traditional journalists are hardly the only people carrying out the craft.
So let’s stop fooling around. It’s time for both houses of Congress to pass the law.