By Megan R. Wilson - 09/18/13 10:00 AM EDT
Big media companies are putting their multimillion-dollar lobbying muscle behind legislation that would create a federal law protecting journalists and their sources.
Time Warner, Hearst Corp., National Public Radio, CBS Corp. and News Corp. are among the media giants lobbying for passage of a shield law, according to disclosure records.
“Unfortunately, we need a crisis to get Congress to focus on this issue,” said Kurt Wimmer, a partner at Covington & Burling who represents the Newspaper Association of America (NAA). “We’re in a pretty good position now to keep Congress’s focus on the bill.”
The Senate Judiciary Committee last week advanced a media shield bill, known as the Free Flow of Information Act, in a 13-5 vote. A senior Senate staffer told The Hill the committee is “optimistic [the bill] will see the floor this fall.”
Support for the shield extends beyond the media industry, with backing from free-speech advocates, including the American Civil Liberties Union (ACLU).
The NAA has organized a coalition of more than 70 media companies, trade associations and free-speech advocates who are seeking passage of a law that protects journalists and their sources.
While shield legislation has stalled in Congress before, supporters are hopeful that this time will be different.
“There’s no illusion that this is going to be easy, but we’re cautiously optimistic that this could be our year,” said Dennis Wharton, executive vice president of communications for the National Association of Broadcasters (NAB), which is part of the coalition supporting the Senate bill.
While the shield bill has bipartisan support, it is also generating controversy.
The question of who would receive the additional legal protections as a “covered journalist” has become a contentious point, with bloggers and lawmakers taking umbrage at the idea of the government deciding who is and isn’t a legitimate reporter.
During the markup of the Senate bill, Sen. Ted Cruz (R-Texas) said the committee had entered “dangerous territory” by drawing lines between who does, or does not, qualify for protection.
“It seems to me the First Amendment protects the activity, not the employment status of the person engaging in it,” Cruz said.
Proponents of the Senate bill concede that it isn’t perfect, and that some journalists who should be “covered” are not.
But supporters of the bill said an amendment adopted during markup that allows judges to review claims from journalists seeking protections would be a “safety valve” to ensure the protections are widely available.
“[The Senate bill] is certainly better than the status quo. It’s an important first step toward greater government transparency,” said Gabe Rottman, legislative counsel and policy adviser at ACLU, who has been lobbying the Senate and the House to move forward with the legislation.
NAA Senior Vice President of Public Policy Paul Boyle, who many on K Street call the “mastermind” behind the push for a federal shield law, said the changes made in the Senate panel improved the bill rather than weakened it.
“I don’t know if people are reading it,” Boyle said of the added judicial review. “If you read it, you say, ‘Wow.’ ”
Lawmakers who support a shield law are also trying to maintain a balance between First Amendment rights and national security.
In 2010, negotiations over shield legislation in Congress were derailed when WikiLeaks released footage of a U.S. Apache helicopter shooting journalists.
An amendment to the bill from Sen. Dianne Feinstein (D-Calif.), also adopted, takes a none-too-subtle jab at organizations like WikiLeaks. The bill explicitly states that the media shield would not cover “any person or entity whose principal function ... is to publish source documents that have been disclosed to such person or entity without authorization.”
Though corporate media may be the most obvious beneficiaries of a shield law, the Senate bill also provides some cover for student journalists, designers of mobile news apps, independently contracted reporters and creators of a “motion picture for public showing” who have an established body of newsgathering work.
Tweaks to the federal shield law proposal could also prove beneficial for corporate America.
The U.S. Chamber Institute for Legal Reform is lobbying lawmakers to include provisions that would allow companies to go after individuals who “have obtained trade secrets or other confidential, proprietary information, [and] use a reporter to get the information out there,” says Matt Webb, the group’s senior vice president of regulatory reform policy.
As drafted, Webb says, the Senate bill mostly gives the government the option to pursue action. Private entities should also be able to file suit if other options for investigating the source of release of sensitive information is revealed, the Institute says.
The push for a shield law took off earlier this year after the Justice Department admitted that it secretly subpoenaed Associated Press phone records and collected records for five reporters’ cellphones and three home phones, in addition to more than 20 office phone lines. Fox News’s James Rosen also had his email records searched by the Department of Justice amid a federal leak investigation.
Nearly every state already has a shield law in place or recognizes a shield “privilege” that judges are required to uphold in court. But those don’t apply when the federal government wants a reporter to reveal his or her sources, such as the DOJ cases.
In a July review of its policies, the DOJ wrote that it needs to significantly “improve its policies with respect to investigations involving the news media,” but it “cannot adopt certain measures without legislative action.”
That month, Attorney General Eric Holder sent a letter to Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, urging the passage of federal shield law legislation. The DOJ also pushed for amendments containing the judicial review that were added last week.
Despite the lobbying coalition behind it, there’s a real chance the shield bill could fall victim to the crowded legislative calendar.
“It’s hard to see a scenario where this rises above a number of other items to become the priority item for [Senate Majority Leader Harry Reid (D-Nev.)],” said a former Senate aide familiar with the shield bill.