shield law

Michael Mukasey, who served as attorney general under former President George W. Bush, is arguing against a bill pending in the U.S. Senate that would allow reporters to protect their confidential sources in most instances, The Wall Street Journal reports. Mukasey argues the bill is '"fraught with near-meaningless amibiguity'" on who would be covered journalists and that the bill would give judges too much power to decide "whether the disclosure of the information would be contrary to the public interest and thus not protected," The Journal also reports.

Journalist Jana Winter was subpoeaned by defense lawyers for James Holmes, the defendant charged with the mass murder of movie theatregoers in Aurora, Colorado, in 2012, about who her law enforcement sources were for a story "which said Holmes sent a notebook to his psychiatrist that indicated he had plans for the shootings," the New York Law Journal reported this week. The New York Court of Appeal heard arguments on whether the New York shield law should apply to Winter when she was subpoeaned in a Colorado criminal court case.

Winter's attorneys argued that New York's shield law protecting reporters from disclosing their confidential sources applies to New York-based reporters covering affairs outside of the state. Attorney Christopher Handman argued, according to the NY Law Journal, that "'the idea that New York, prideful as it was about being the center of the dissemination and the gathering of news throughout the world, would limit its protections to reporters talking to sources in New York about parochial New York affairs flies in the face of the way the Legislature broadly defined news to be worldwide events.'"

Reuters reports: "California Governor Jerry Brown signed a law on Thursday to give journalists in the state five days' notice before government agencies serve subpoenas on their records held by third parties, such as phone companies and internet service providers."

U.S. News and World Report recounted last week that even supporters of passing legislation that would allow journalists to keep their confidential sources shielded admit that the legislation would not address the situation in which the U.S. Department of Justice seized without notice two months of Associated Press phone records. Just today, several outlets are reporting that a former FBI agent was identified in those phone logs and has now agreed to plead guilty to leaking news of a failed 2012 "underwear bomb" plot by al Qaeda, the Wall Street Journal reports: http://online.wsj.com/article/SB1000142405270230375960457909362328002599...

Another concern raised about the bill as currently drafted is that it would not provide protection to citizen bloggers. Moreover, an amendment backed by Sen. Dianne Feinstein, D-Calif., "intentionally excises WikiLeaks publisher Julian Assange from supposed legal protections for journalists," according to U.S. News.

One of the legislative opponents to the bill, Sen. Mike Lee, R-Utah, told U.S. News in an email: "The extension of the bill's protections to a so-called 'citizen blogger,' a journalist who is not employed by traditional media outlets, is entirely subject to the judge's willingness to exercise discretion, after finding that doing so would be (a) in the interest of justice and (b) necessary to protect lawful and legitimate news-gathering activities. Thus, while for some the privilege is automatic and known in advance, those outside the favored status may only hope that a reviewing federal judge deems them sufficiently worthy of protection."

While acknowledging the criticism that the federal shield bill would not on its face protect citizen-journalists, this Washington Post editorial argues that there is an adequate release valve because the bill "would also empower judges to extend its protections to anyone if they determine that doing so would be 'in the interest of justice and necessary to protect lawful and legitimate news-gathering activities."'

Free Press' Josh Stearns argues the proposed federal shield law for journalists, the Free Flow of Information Act, which passed out of the Senate Judiciary Committee last week, "could be greatly strengthened and simplified by defining journalism as an act, a process that anyone can participate in, instead of a profession limited to a few practitioners."

The Wall Street Journal's James Taranto asks tongue-in-cheek if Russia President Vladimir Putin would be a journalist under the definition set out in the journalist federal shield law pending in the U.S. Senate. Covered journalists would include those with a considerable amount of freelance work in the last five years. Taranto then wrote last Friday: "To answer the question our headline poses, at least the definition is not so broad as to encompass this week's most prominent newspaper writer, Vladimir Putin. His Thursday contribution to the New York Times--which he himself wrote, according to a spokesman for his PR firm in an email to BuzzFeed--was not his first. In a 1999 piece he defended his own government's effort to put down a violent rebellion in Chechnya. But since that's more than five years ago, it wouldn't count toward the 'considerable amount of freelance work' threshold."

GigaOM's Mathew Ingram argues that the federal shield law for journalists pending in the U.S. Senate is a bad idea because it would "allow the government to define who gets to be a journalist and who doesn’t." Ingram further argues, even though senators tried to draw a line between freelance journalists and Wikileaks, the leaker web organization "is clearly a media entity — a key part of what Harvard law professor Yochai Benkler has called the 'networked fourth estate.'"