The Senate Judiciary Committee last week approved a new version of the proposed media shield law, forging a compromise on who should be protected from having to reveal their journalistic sources in court. The amended bill, which is now clear to go for a full vote in the Senate, avoids defining who is a “journalist.” Moreover, it would allow judges the discretion to apply the protection to any person who, in the interest of justice, should be considered a practicing journalist.

The bill is far from perfect, but the new compromise opens the door to non-mainstream journalists, as well as new forms of journalism that may develop in the future.

The Long and Winding Road to a Federal Reporters’ Privilege Statute

The Free Flow of Information Act of 2013 (S. 987) would create protection for newsgatherers who are served with subpoenas or other court orders seeking unpublished information obtained during the course of their newsgathering.

Currently, 40 states have shield laws that provide protections against subpoenas and orders issued by state courts, but there is no statutory protection against subpoenas and other orders issued by federal courts. Instead, newsgatherers have had to rely on a “reporters privilege,” interpreted by many federal courts as deriving from the First Amendment. Yet few courts apply it to block grand jury subpoenas, which are especially common, and the vitality of the constitutional privilege as a whole has recently been called into doubt. Indeed, a recent decision of the Fourth Circuit U.S. Court of Appeals refused to apply it at all.

There is no question that a federal shield law is needed. However, as with all shield laws, the law must define which persons can claim its protections.

The states that have adopted shield laws, and the courts that have found similar protections deriving from either the First Amendment or common law, have taken one or both of two approaches to this question. Some have adopted a “functional definition,” whereby the protection is available to anyone who is functioning as a journalist—that is, someone collecting information for the purpose of distributing it to the public. Others have adopted a “status definition,” in which the person entitled to the protection is defined by his or her employment or other affiliation with a media organization. We have before expressed concern that status definitions often fail to cover non-traditional journalists such as self-publishing bloggers and citizen journalists.

A previous version of the federal shield, which passed the same Senate Judiciary Committee in 2009, labeled the persons covered by the law as simply, “covered persons”—avoiding a definition of “journalist.” That same definition was carried forward into the 2013 version of the bill, and we previously explained our concern that the definition’s requirement that a covered person “regularly” gather and report news might be interpreted to exclude journalists not connected to a legacy media entity.

Then last month, Sen. Diane Feinstein (D-CA) attempted to take the proposed shield law in a worse direction. She proposed an amendment that would explicitly define “journalist” and limit it to those who were salaried employees of media entities and those with a past record of having been so employed. We explained in a post how this definition was likely to exclude citizen journalists and self-publishers as well.

The Good News

The version of the law that passed out of committee contained a compromise between the  definition of “covered person” and Feinstein’s definition of “journalist.” The new language improves on Feinstein’s definition in four important ways.

First, the bill defines “covered journalist” instead of “journalist.” Although this may seem purely cosmetic, it is a significant substantive improvement. The bill now does not purport to have the federal government define who is a “journalist” or “journalism” for all purposes, but only the subset of journalists covered by the shield.

Second and perhaps most importantly, in addition to protecting “covered journalists,” the bill also contains a “Judicial Discretion” provision, whereby the judge is empowered to extend the shield law’s protection to any person if:

on the specific facts contained in the record, the judge determines that such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case.

The importance of this provision cannot be overstated. It provides an avenue for non-mainstream and citizen journalists to demonstrate that they are deserving of the shield, even if they otherwise fall outside the law’s strict definition of “covered journalist.” Thus, those journalists who may not have been covered by the 2009 law, such as first–time freelancers or self-publishers who cannot prove a connection to an “entity,” are not automatically excluded. The provision is not perfect—the “legitimate news-gathering” language is a bit of a bitter pill to swallow—but it constitutes a vast improvement over the past attempts that we have criticized.

Third, the newly approved definition drops the requirement that the journalist be a “salaried” employee.

Fourth, the newly approved version contains more generous “look back” provisions, thus covering persons who have a track record of practicing journalism extending back as far as 20 years or for any continuous three-month period over the last five years.

The Bad News

If the law becomes effective, we'll have to monitor closely how judges exercise judicial discretion. If judges exclude self-publishers and non-traditional journalists, we'll raise calls for the law to be amended.

In addition, there is a provision that tries to exclude WikiLeaks, or WikiLeaks-type organizations, from protection. WikiLeaks has been an important, if controversial, part of the news ecosystem. It has played a vital role to some of the most widely read news in the past decade. The exclusion may ultimately be pointless, since WikiLeaks is designed so it does not know the identities of sources.

We still have issues with other aspects of the proposed law aside form the definition of covered person. We would, for example, love to see the national security exception eliminated, which depending on how it is interpreted, would give the least protection to the journalists who need it the most. The House version of this bill does not have this exception.

But the need for a federal shield law has become quite pronounced in recent months with the recent disclosure that the phone records of the Associated Press were secretly subpoenaed (though, under the Senate version, it’s unclear if the AP would have been covered for that story, due to the national security exception). This newly approved version appears to have found an acceptable way of bringing within its coverage a wide range of newsgatherers.