No Vote Yet On Shield Law


The Senate Judicary Committee once again was unable to end debate or vote on the Free Flow of Information Act, the federal shield law that would protect journalists and their sources from government overreach.

Consideration of the bill had been put off from last Thursday after there were not enough Senators--10--to make a quorum because they were working on health care.

While there were enough for a quorum this time around, health care still intruded. Four of the five senators who had amendments they wanted to introduce were not present because of a finance committee markup on health care reform.

"In light of the number both for and against it who are not here today, we're not going to be able to end debate on the measure."

Committee chairman Patrick Leahy said in light of that "unique" situation with the finance committee markup, he was willing to give the bill some extra time, but was clearly disappointed. But he was also firm in his resolve that the bill would get done.

He said he had talked with the Attorney General and said the administration may want to sugggest a couple of last minute changes after the bill is passed out of committee, but said: "The bill will be passed."

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.