The Shield after Senate Judiciary

Last Thursday, the journalism organizations at work on a shield bill won two victories in quick succession. In just about five minutes, the Senate Judiciary Committee rejected an amendment that would have restricted the journalists and writers eligible for the shield's protections, and then voted to report the bill to the Senate floor. While the final stage of the bill's journey through the Senate Judiciary Committee passed rather quickly, getting to this point took at least five years of arduous work—and there's still a long way to go before journalists have some statutory protection from being forced to testify in certain federal cases. The drama at last week's Senate Judiciary Committee meeting focused on an amendment, offered by committee members Dianne Feinstein and Dick Durbin, that would have restricted the bill's definition of a journalist. "We knew the definition has been a sticking point for those two senators," says Sophia Cope, the legislative counsel at the Newspaper Association of America, which has been leading the lobbying effort on behalf of a seventy-one member coalition of press groups. The coalition has generally favored definitions that closely hew to the standards established by von Bulow v. von Bulow, a 1987 ruling by the Second Circuit that recognized a journalist's limited immunity from forced testimony. Courts in the Second Circuit, when confronted with a person hoping to avoid testimony by claiming the privilege, ask questions like whether they regularly collect and disseminate information of public interest, and not questions about who they work for or how much they get paid. Supporters contend that such a functional definition is valuable because it is financially, medium, and technology neutral, and better able to fit an industry changing at a rate of speed that sluggish legislatures couldn't hope to match.