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SPJ looks for passage of shield law with veto-proof majority in second vote

By Billy O'Keefe

LAURA BURNS / The Working Press
In July, about a dozen Society of Professional Journalists members lobbied U.S. senators to pass the Free Flow of Information Act. Despite the efforts of SPJ President Clint Brewer and others, debate on the bill was closed with a 51-43 vote, effectively killing the bill.
When Congress returns to session on Monday it can be brought back to the floor for another vote, and SPJ hopes it will be passed with a veto-proof majority.
The bill aims to protect from prosecution journalists and whistle blowers who might not otherwise come forward with information.
“This is not about reporters. This is a way to make sure that citizens have accurate independently gathered information,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “That’s why it’s called the Free Flow of Information Act, not the ‘Let’s Protect Reporters Because They’re Special Act.'”
The definition of a reporter is also controversial. With independent citizens engaging in journalism online, there is some question about who is protected by the shield law. In the senate bill, journalism is defined as “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information.”
“It’s easy for the average person to pick up a video camera and assume the role of a journalist,” said Frank LoMonte, executive director of the Student Press Law Center. “There are some in Congress that feel that that an amateur person who picks up a video camera or starts his own personal Web site isn’t entitled to the same status as the same person who is working at a recognized news organization.”
The bill’s opponents in the senate voiced concerns about giving journalists blanket confidentiality and protection from federal subpoenas. Provisions have been made so the law would not protect criminal conduct by a journalist or information necessary to prevent terrorism, death or injury, kidnapping or the sexual exploitation of a child. One of the major concerns is national security, which senators and Bush administration officials say would be more difficult to protect if federal officials cannot gain access to journalists’ sources.
“National security is not something SPJ or fellow federal shield law supporters are ignoring in the effort to protect journalists’ confidential information and sources,” Brewer said in a recent SPJ staff report. “This bill addresses the opposition’s concerns about national security. However, it would require law enforcement officials and prosecutors to exhaust all other investigative avenues before turning to journalists.”
Sen. Jon Kyl, R-Ariz., put a hold on the bill because of his concerns about the definition of a journalist, leaking of classified information and the investigation of a terrorist attack.
“Senator Kyl is essentially echoing the concerns from the Department of Justice and the [Bush] administration,” said Laurie Babinski, an associate at Baker-Hostetler, SPJ’s legal counsel.
Director of National Intelligence Mike McConnell wrote a USA Today opinion piece joining the attorney general and Bush Cabinet members in opposition to the Free Flow of Information Act. The president’s advisers have said they will suggest that he veto the bill if it reaches his desk.
“A lot of the criticism is fear mongering on part of the Bush administration, who want more secrecy in government,” said Toni Locy, a former USA Today reporter facing fines and being held in contempt for refusing to reveal her sources. “Secrecy is bad for this country and bad for democracy.”
Locy herself did not support a federal shield law before she was issued a subpoena to disclose her sources in civil court during Stephen Hatfield’s lawsuit against the federal government. Hatfield claimed his privacy rights were violated when investigators announced to reporters he was a person of interest in the 2001 anthrax investigations.
“I didn’t think it was necessary as long as I was fair, accurate and skeptical of what the government was doing,” Locy said. “I thought the First Amendment would be enough, but I was wrong.”