The same dynamic could still be at play as lawmakers, particularly in the Senate, wrestle with thorny questions over who should be defined as a “journalist” and when the government may override the shield law and compel the disclosure of a reporter’s sources.
In the current House bill, journalism is defined as “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 in the public.” That definition is almost certain to run into concerns among senators, including Richard J. Durbin, D-Ill., and Dianne Feinstein, D-Calif., who expressed wariness in 2009 about an overly broad definition of journalism — one they said could allow congressional press secretaries or bloggers to claim a reporter’s privilege in court.
Asked about the senators’ past concerns on Wednesday, Poe acknowledged the difficulty in defining journalism under the bill. “Probably before we get a vote on the bill, we’ll clarify what a journalist is,” he said. “Because of the Internet primarily, 2007 is a lot different than 2013.”
Concerns over national security are likely to be the other major obstacle. Schumer previously pushed the media shield legislation he is currently sponsoring, but the measure — which made it out of the Senate Judiciary Committee on a 14-5 vote in October 2009 — eventually fell victim to concerns over national security.
In particular, a furor over the website WikiLeaks, which published sensitive national security information as the bill was pending on the Senate floor, led lawmakers to question whether the measure would allow the site’s founder, Julian Assange, to avoid prosecution.
“It just never went forward from there,” said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, which has advocated for a federal media shield law to rival the measures that are already on the books in 49 states and the District of Columbia.
Leslie acknowledged the difficulty in passing highly technical legislation that attempts to strike a balance between national security and freedom of the press, but he said he believes the chances this year are better than in the past.
He noted there is bipartisan outrage in Congress about the Justice Department’s actions, and several key senators who held up passage of the bill in the past — such as Jon Kyl, R-Ariz., and Arlen Specter, D-Pa. — are no longer in Congress. In addition, new senators, such as Republicans Rand Paul of Kentucky, Mike Lee of Utah and Ted Cruz of Texas, are strong proponents of the Bill of Rights and might be inclined to support the measure based on its First Amendment protections.
“I would think that’s going to work in our favor,” Leslie said.
In an earlier version of this article, the photo caption misstated which chamber Ted Poe serves in. He is in the House.