Judiciary Panel Deal Defines ‘Journalist’ (Updated)

(Douglas Graham/CQ Roll Call File Photo)
(Douglas Graham/CQ Roll Call File Photo)
Posted September 12, 2013 at 10:43am

Updated 5:33 p.m. | Senators have reached a deal on the definition of “journalist.”

It’s a key development that allowed a media shield bill to advance out of the Judiciary Committee Thursday with bipartisan support.

An agreement was reached by media groups supporting a shield law and Democratic Sens. Dianne Feinstein of California and Richard J. Durbin of Illinois, who favored narrowing the definition from what was in the original bill.

New York Democratic Sen. Charles E. Schumer, the lead sponsor of the original measure, worked to broker the deal to get Feinstein and Durbin on board. Those two senators had opposed a 2009 shield law effort, saying that bill used an overly broad definition for journalists.

As now amended, the legislation would include individuals who have been employed as journalists by media organizations for at least one year in a two-decade period or at least three months within the five-year window, along with student journalists and those with a substantial amount of work as a freelancer.

In addition, federal judges would be permitted to cover other individuals with the privilege when circumstances warrant.

Schumer and Lindsey Graham, R-S.C., relaunched their media shield law effort after revelations that the Department of Justice collected information, including phone records, associated with journalists with both Fox News and The Associated Press.

The deal allowed the committee to send the measure to the floor with a 13-5 vote. Judiciary Chairman Patrick J. Leahy, D-Vt., was among the 13 senators backing the bill.

“All of us — whether Republican, Democrat or independent — have an interest in enacting a balanced and meaningful media shield bill to ensure a free flow of information to the American people,” Leahy said. “This bill carefully balances the need to protect confidential source information with the need to protect law enforcement and national security interests, so that we can better protect the American people’s right to know.”

Leahy said he would co-sponsor the measure as it heads for the floor.

Republican Sen. John Cornyn of Texas was one of the senators warning of trouble with the legislation, saying that the protections afforded by the bill were actually defined to too narrow a group of people and should be afforded to anyone qualifying as part of the “free press” under the First Amendment.

Cornyn offered an amendment to expand the scope, citing Constitutional concerns with what he called a “restrictive and static coverage formula.”

Cornyn’s Texas GOP colleague Ted Cruz expressed concern that in allowing the government to define journalists, they would be favoring corporate-owned media organizations over “citizen bloggers.”

Sen. Jeff Sessions said the judicial branch would have too much discretion to determine what is “significant and articulable harm” to national security.

“Judges should not be expected to classify information. They’re not capable of deciding what should be kept classified and what should not,” the Alabama Republican said. “In many cases, the inability to identify sources of leaked information will guarantee the leaker will be able to violate the law with impunity and get off scot free. That’s an absolute fact.”

“The current system is not broken in my view,” said Sessions.

In response to concerns about news organizations that might be operating as agents of foreign governments, Schumer said there’s a clear exemption in the legislation.

“Obviously, if anyone’s a foreign agent or acting as a foreign agent, there’s a provision that explicitly exempts them,” Schumer said. “On all these national security issues, we have bent over on the side of national security. In fact, some on the left think we’ve gone much too far in that regard, but again, we’re trying to pass a bill and trying to get everybody on board because the present situation is such a mess.”

Schumer and his colleagues took a step in that direction on Thursday.

Update 5:33 p.m.

Schumer said Thursday afternoon that he would look for an opportunity to fit the bill into the Senate floor schedule as soon as possible.

“It got a good bipartisan vote. People are very interested in it. Leader Reid has been interested in it, and we got the ranking member as well as the chairman for it,” Schumer said. “So, it should move pretty quickly.”