Push for shield law continues despite delay

• By: ASNE staff
• On: 12/04/2009 15:30:00
• In: Shield law alerts

The Senate Judiciary Committee on Thursday delayed passage of the federal shield law, but we remain confident that the Free Flow of Information Act will be enacted during the 111th Congress and are dedicated to making that happen.

The Judiciary Committee´s Executive Business Meeting seemed destined for one of two outcomes:

1. Committee passage of S 448, perhaps with some amendments, or
2. a decision to take S 448 straight to the Senate Floor because of continued opposition from committee members opposed to the bill.

One potential amendment began to appear increasingly likely as of Wednesday evening: an attempt by Senator Dianne Feinstein, with the likely support of Senators Ben Cardin, Richard Durbin, and Amy Klobuchar, to reinstate the requirement that a person claiming this privilege be a salaried employee of or independent contractor for a media entity and that he or she not be working anonymously or under a pseudonym. We were ready to oppose this amendment.

Of course, none of these occurred. Two amendments were introduced (Feinstein´s proposed amendment was not one of them); one was approved. But the final bill still did not receive an up or down vote from the committee.

Senator Jon Kyl and Senator Jeff Sessions were prepared to introduce several amendments. One of Senator Kyl´s noncontroversial amendments was quickly considered and approved. It requires the Inspector General of the Department of Justice to do a comprehensive audit of the use of the Free Flow of Information Act between the date of enactment and December 31, 2012, focusing on those instances in which a privilege claim is upheld and whether the Act creates any procedural impediments to federal law enforcement. We welcome oversight of this process and hope it ensures the Act works as intended.

Senator Orrin Hatch offered an amendment that would prevent the application of the privilege in cases where there is a crime against a child. He actually introduced this amendment without much controversy in July 2008. We do have some concern that it will be overly applied to past action rather than preventing future or ongoing crimes. Senator Hatch agreed to withdraw the amendment in the interest of refining it to everyone´s satisfaction.

Senators Kyl and Sessions then stated that they planned to offer 25 more amendments. Even at a very basic level of five minutes of debate per amendment (an amount offered by co-sponsors Schumer and Specter), it would have required multiple committee meetings to complete this process. This is where we expected that the co-sponsors would seek to move the bill directly to the Senate floor. However, much to our surprise Senators Schumer, Specter and Leahy stated that they would make one last attempt at rapprochement with Senators Kyl and Sessions. These senators are expected to meet in the next week or so to discuss an agreeable time limit for debate on amendments to S 448. Senators Schumer and Specter once again stated they will move the bill straight to the Senate floor if a time agreement cannot be reached. We hope they stand firm to this commitment.

One thing is certain: This remains ASNE´s top legislative priority. We will carry on our work with other media organizations and companies, continue to encourage members of the Senate and their staff to pass this bill and continue to provide you with the information that will allow you to engage in your own outreach as well.

Our involvement is crucial to ensuring that the federal shield law becomes a reality. The ASNE Free Flow of Information Act home page will continue to be updated as more information becomes available, and our legal counsel, Kevin M. Goldberg, remains available at 703-812-0462 to answer your questions.

Thank you,

Andy Alexander
Tim Franklin
ASNE Freedom of Information Committee Co-Chairs