Supporters of a bill that would create a federal shield law for reporters are pushing to get the legislation to the Senate floor following the Supreme Court’s decision to not hear New York Times reporter James Risen’s case on Monday.
The Supreme Court declined to review a lower court’s ruling that Risen’s status as a journalist does not grant him First Amendment protections from being compelled to testify about his sources of classified information.
The ruling is a defeat for Risen, who is now facing jail time if he refuses to testify. However, shield law supporters hope it will spur the Senate to take up the bill.
“This illustrates, in concrete terms, why Congress should move quickly,” Society of Professional Journalists president David Cuillier in a statement. “Ultimately, this isn’t about protecting Risen or other journalists. It is about protecting the ability for Americans to receive the information they need to adequately self-govern.”
More than 40 states have some form of shield law that protects reporters from being compelled to testify about their sources, but there is no federal law.
Shield law supporters have long pressed for a federal version, but until recently there was little momentum.
In a surprise vote last week, the House passed an amendment that would block the Justice Department from compelling reporters to testify about confidential sources.
The Senate Judiciary Committee passed a shield law bill last year after news reports revealed the Justice Department had secretly subpoenaed phone records of reporters at the Associated Press and Fox News.
However, the Senate version is narrower than the House bill. It contains a national security exception and also defines who is covered as a reporter. Transparency advocates consider the bill imperfect, but most still consider it the best opportunity they’ve had to pass any shield law in decades.
Sophia Cope, the director of government affairs for the Newspaper Association of America, said her organization has met with Senate Majority Leader Harry Reid’s (D., Nev.) staff several times, and said he’s supportive of the legislation.
“We've been doing whip counts, and we have at least 45 Democrats,” Cope said. “We’re pretty confident rest of caucus will be supportive.”
Five Republicans on the Senate Judiciary Committee voted against advancing the bill last year, such as Sen. John Cornyn (R., Texas). Cornyn has opposed the bill, saying it would carve out inappropriate protections for reporters, essentially placing them above regular citizens.
"This idea of saying you could have information about a crime and you are immunized of having to partake in a basic act of American citizenship strikes me as pretty odd to say the least," Cornyn said.
However, a number of Republican senators—such as Chuck Grassley (R., Iowa), Lindsey Graham (R., S.C.), and Orrin Hatch (R., Utah)—support the bill.
Even if there is enough Republican support to pass the bill, the main hurdle for supporters will be getting it to the Senate floor before Congress’ August recess.
“Sen. Reid has a lot of different things he wants to get done before the end of the year, and of course the Republicans have their own priorities,” Cope said. “It’s a matter of finding the right opening.”
For his part, Risen has said he will not comply with the subpoena. In an emailed statement to Politico Monday, he said, “I will continue to fight.”