By a 14-5 vote yesterday, the Senate Judiciary Committee approved S. 448, Free Flow of Information Act of 2009, and has sent it on to the full Senate for consideration. The bill, introduced by Senators Specter, Schumer, Graham and Klobuchar in Committee, for the first time extends press shield protections to matters in federal courts, allowing journalists to withhold their sources from federal prosecutors except in cases involving national security, and crucially will do so while giving online journalists equal access to these protections. Under this bill, a journalist is someone who:
(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—
(I) conducting interviews;
(II) making direct observation of events; or
(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;
(ii) has such intent at the inception of the process of gathering the news or information sought; and
(iii) obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means.
[This definition, incidentallly, is based in large part on the Second Circuit's 1987 decision in von Bülow v. von Bülow, and, yes, those von Bülows.]
As you may recall, Senators Durbin and Feinstein had sought to restrict the bill's definition of journalist, and yesterday they advanced another amendment to do so, which instead would restrict "journalists" to include only (additions in bold, deletions struck):
a person who, for substantial personal gain,
(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by conducting interviews or making direct observation of events
(I) conducting interviews;
(II) making direct observation of events; or
(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;
(ii) has such intent at the inception of the process of gathering the news or information sought; and
(iii) obtains the news or information sought in order to disseminate the news or information by means of newspaper, nonfiction book, wire service, news agency, magazine, news website, or other periodical, whether in print or electronic format, television or radio broadcast, or motion picture for public showing;
(iii) obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means.
and (D) does not include an individual who gathers or disseminates the protected information sought to be compelled anonymously or under a pseudonym.
(7) SUBSTANTIAL PROFESSIONAL GAIN.—The term ‘‘substantial professional gain’’ means that a person—
(A) was an employee, contractor, or agent of an entity disseminating news or information through a means described in paragraph (2)(A)(iii)—
(i) on the date on which the information alleged to be protected information was disclosed to the person; or
(ii) for any 6-month period during the 2-year period ending on the date on which the information alleged to be protected information was disclosed to the person; or
(B) was a student participating in a journalistic publication at an institution of higher education ...on the date on which the information alleged to be protected information was disclosed to the person.
If you don't like that narrow definition, you're not alone. Neither did the Judiciary Committee, by an 11-8 vote. MediaPost:
Feinstein said at the hearing that she favored a narrow definition of journalist because including amateurs and others would mark a "weakening of the profession of journalism."
But other lawmakers successfully countered that bloggers, freelancers and amateur writers should have the same opportunity to protect their sources as professionals on staff.
Sen. Patrick Leahy (D-Vt.) endorsed the "carefully crafted" bill's inclusion of bloggers, and hailed Benjamin Franklin for his "anonymous blogs" that explained "the reasons why this country should exist."
Pamphleteer Thomas Paine likewise got a few mentions as the senators debated whether to define a journalist as someone employed by a mainstream organization.
Sen. Chuck Schumer (D-N.Y.) added that the medium that news appears in shouldn't determine whether journalists are covered. "People can do bad things on paper and good things on paper," he said. "They can do bad things electronically and good things electronically."
Other amendments voted on yesterday concerned the scope of the exceptions to the privilege -- which other criminal law matters should be beyond the shield's protection? You can review those amendments and their disposition here.
The bill now moves on to the full Senate for consideration.