Holes in Media Shield Law Worry Opponents, and Even Some Supporters

It’s possible limited legal protections would shrink further, legal and media experts say.

Sen. Dianne Feinstein, D-Calif., talks to reporters before heading to a Senate Democratic policy luncheon on Sept. 17, 2013, in Washington, D.C.

Sen. Dianne Feinstein, D-Calif., talks to reporters before heading to a Senate Democratic policy luncheon on Tuesday, Sept. 17, 2013, in Washington, D.C.

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"It's hard to say how the courts would interpret shield law legislation. It's hard to predict courts, which direction they will go," he said. "The courts [sometimes] just bungle things, they misinterpret the intent of the statutes."

[MORE: Senate Presses Ahead With Media Shield Law]

Pre-notification of record seizure under the proposed law could also be waived if notice would allegedly risk serious injuries, deaths or "grave harm to national security."

The "harm to national security" standard could invalidate protections for reporters working on stories about leaked information – for example, copies of documents leaked by former National Security Agency contractor Edward Snowden.

"Lawmakers introduced this bill after the federal government violated press freedom by probing the phone records of Associated Press reporters, yet it does the very thing it purports to stop," said Jason Stverak, president of the Franklin Center for Government and Public Integrity, in a Monday statement denouncing the proposal. "Rather than provide a 'shield' for journalists so that the government cannot force them to reveal confidential sources... [it] leaves gaping loopholes of vague language ripe for government exploitation."

For critics, the most heinous aspect of the pending bill is its definition of who is – and more specifically, who is not – a journalist.

An amendment successfully pushed by Sen. Dianne Feinstein, D-Calif., intentionally excises WikiLeaks publisher Julian Assange from supposed legal protections for journalists. Assange's role in disseminating and offering commentary on leaked primary source material on the U.S. wars in Iraq and Afghanistan and State Department cables infuriated Feinstein, who in a 2010 Wall Street Journal op-ed insisted that Assange be put on trial under the Espionage Act.

Feinstein's successful amendment specifically removes from the protected journalist pool terrorists, agents of foreign governments and anyone "whose principal function, as demonstrated by the totality of such person or entity's work, is to publish primary source documents that have been disclosed to such person or entity without authorization."

Pollack said the amendment "runs contrary to the First Amendment," which itself does not define press membership. "The very purpose of the First Amendment is to prevent Congress from picking and choosing which type of disseminators of information are worthy of protection," he said.

"It is particularly ironic that it determined that those journalists who provide truthful information directly to the public for its consideration are less deserving of protection than those who filter what information they provide to the public," Pollack said.

Pollack represents Assange in the U.S. where the leak-facilitator is a subject in an ongoing grand jury investigation into WikiLeaks. Other attorneys represent Assange in Europe, where he is holed up in Ecuador's London embassy to avoid extradition to Sweden for questioning about alleged sex crimes.

In the current version of the Senate bill, a reporter associated with a professional or student media outlet is granted some ability to contest forced disclosure in criminal and civil cases, but would be forced to divulge information involving "properly classified" documents "reasonably likely to cause significant and articulable harm to national security" and in various criminal matters, likely failing to shield journalists in high-profile leak cases.

Sen. Mike Lee, R-Utah, voted against the bill in committee. This "legislation may have the effect of excluding certain persons from enjoying the added First Amendment protections the bill would provide, [so] I cannot support it," he told U.S. News in an email.

"[T]he judicial discretion set out in the adopted Feinstein amendment does not resolve my concerns," Lee said. "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."