State Laws/Franchising

Judiciary Will Take Another Crack At Shield Law

9/17/2009 3:23 PM Eastern

The Senate Judiciary Committee has rescheduled a hearing on the federal shield law for next Thursday (Sept. 24), according to a committee source.

The source, speaking on background, said the Sept. 17 vote was not held once it became clear there were going to be no amendments offered -- and after over  90 minutes of statements and discussions -- several members had to leave to deal with health care and appropriations bills on the floor. That left the committee without enough members for an official vote.

Committee chairman Senator Patrick Leahy (D-Vt.) had another term for it: Stonewalling.

According to a statement from his office, the chairman was disappointed and said that, "despite weeks of debate and months of negotiations, Committee Republicans stonewalled consideration of amendments."

"Today is Constitution Day," said Leahy in a statement, "and as we mark the 222nd anniversary of the adoption of our nation's charter...I had hoped the Committee could proceed with this open government legislation. I am committed to reporting a reporters' shield bill from the Judiciary Committee this year, and I hope all Senators will work with us to reach that goal."

The bill passed in the House by a voice vote last March.

Republicans have raised concerns that the law tilted too much in favor of journalist protections and away from the interests of law enforcement and national security. But the committee last week unanimously adopted changes to address some of those concerns,. According to a summary of the amendment, it:

• Clarifies that the public interest balancing test that the court will apply in media shield cases should weigh and consider the public interest in the particular news story at issue.
• Clarifies that an individual who is engaging in activity that is not protected by the First Amendment cannot claim the privilege.
• Expands the national security exception to the privilege.
• Clarifies that, in a leak investigation, the government need not prove that a person with authorized access to classified information leaked that information before seeking confidential source information.
• Adopts procedures for review and appeal that explicitly allows for the ex parte review of protected material, under seal, upon good cause shown by any party, and requires review of a decisions by a district court within 30 days and an expedited interlocutory review in appellate court
• Narrows the definition of "covered person" to include only those individuals who are engaged in journalism, with the intent to engage in journalism at the inception of the activity
• Provides for more specific notice to communications service providers, and makes clear that such providers should not comply with an order to produce information until enforced by a court or authorized in writing by a covered person
• Clarifies that the bill does not preempt state laws governing defamation, slander and libel, explicitly does not modify grand jury secrecy laws, and explicitly does not modify the Foreign Intelligence Surveillance Act.

September