Among journalists, almost no one disputes the need for a federal shield law. Among politicians, the cause is not as noble. Journalists have been lobbying Congress for a shield law for six years, but Congress hasn’t passed one yet.
So on to the full Senate with the Free Flow of Information Act! But coalition leaders knew it wasn’t so simple. Senators Dianne Feinstein of California and Dick Durbin of Illinois had voted the bill out of committee on the understanding that before the Senate took it up they’d get to amend it. “Feinstein has issues with bloggers and she always has had,” says Kevin Smith, who stepped down last week as president of the Society of Professional Journalists. “She doesn’t want bloggers to have any of the similar protections that legacy journalists do.”
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Former Supreme Court justice Potter Stewart got away with saying that he couldn’t define pornography but he knew it when he saw it. But Stewart wasn’t trying to protect pornography—who cared if his methods were crude? The authors of a shield law can’t be so casual. It’s not that we don’t love our journalists, but few love them enough to risk erring on the side of overinclusiveness. This includes some journalists themselves.
Which is wrongheaded, Boyle says. Sources that can trust the New York Times to protect them will leak to the New York Times, he reasons, and the Times will deal with sensitive material thoughtfully and responsibly. Sources that can’t trust the New York Times will find a way to throw it out anonymously on the Internet. Besides, the Free Flow of Information Act is studded with national-security protections.
This was too inclusive for Feinstein and Durbin. In April Feinstein’s office proposed new language. Cutting to the chase, it drops the concept of covered person altogether and instead defines journalist.
Feinstein’s spokesman told me, “Our office has been engaged in productive talks with stakeholders to ensure that organizations like Wikileaks are excluded. . . . The bill has not yet been scheduled for a vote, so these negotiations have not caused any delay.”
