The Senate is now acting on the federal shield bill. First introduced September 10, the bill has already passed its committee and is in the same position as the House’s version. CNET reports that the Senate bill’s broad definition of journalism includes:
the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public
The “Free Flow of Information Act,” as it has been called, will still be some time in the works. Both versions of the bill will include numerous exceptions to these journalistic privileges. The bill was sponsored in the House by Rep. Rick Boucher, D-VA (with 71 cosponsors). In the Senate, the sponsor is Sen. Arlen Specter, R-PA, with Sens. Christopher J. Dodd, D-CT; Lindsey Graham, R-SC; Richard D. Lugar, R-IN; and Charles E. Schumer, D-NY cosponsoring.
If the bill does eventually pass, there’s a chance that President Bush, whose administration opposes the bill, may veto it. However, Bush has only vetoed four other bills during his 6+ years in office, so odds are good that he would sign it into law.
A quick constitutional lesson: the First Amendment guarantees the right to print whatever you like. The federal shield law is designed to help strengthen this amendment by reducing the chilling effect that would be created if journalists were forced to reveal anonymous sources to law enforcement agencies. There is no provision in the Constitution itself for this.
However, there is legal precedent against shield laws. In Branzburg v. Hayes (1972), the Supreme Court ruled that reporters do not have a constitutional right against divulging sources who wished to remain anonymous, although the government needed to “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest” (ref).
Supreme Court decisions are the ultimate authority on the meaning of the Constitution. If the First Amendment doesn’t automatically provide for journalists to protect their sources, a federal shield law is absolutely necessary to give journalists that privilege. The question remains, however, if the Supreme Court will let the law stand.