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A Poison Pill for the Federal Shield Law

04/01/2014 09:49 am 09:49:53 | Updated Jun 01, 2014

The "poison pill" has a long and storied history. It began as a literal poison -- the pill spies would carry so that they could commit suicide to avoid interrogation. In the 1980s, it became a corporate law technique designed to make hostile takeovers more difficult. And in Congress, the "poison pill" has become a term used to describe an amendment that changes the intent of a bill so that it becomes useless and dies. Often, the "poison pill" is cleverly disguised as an effort to actually further the purposes of the bill that it is designed to kill.

For a good example of a poison pill in Congress, look at the rhetoric that Senator John Cornyn (R-Tex.) is using to oppose the Free Flow of Information Act, a bipartisan bill that would provide a limited and qualified privilege so that journalists can protect confidential sources without going to prison to do so. Senator Cornyn bitterly resisted the bill in the Senate Judiciary Committee but was outvoted.

Now, Senator Cornyn claims that the bill won't cover bloggers and will lead to licensing "official" journalists:

"That really smacks to me in essence of government licensing who's an official 'journalist' for the purposes of a shield law and who's not. If there is one thing I can glean from the First Amendment, it is that government should not be in the business of licensing the news media."

To avoid this supposed result, opponents of the bill offered an amendment that would apply the privilege to "anyone covered by the First Amendment."

This is, of course, absurd.

Like any bill, the Act must define its terms. The attorney-client privilege only applies to "attorneys," a defined term. The doctor-patient privilege only applies to "doctors," a defined term. The journalists' privilege applies to "covered journalists" when they have received a demand for testimony -- an extremely expansive term defined in the Act as anyone working for a journalism outlet (explicitly including bloggers), freelancers with an intent to publish, and anyone a judge finds should be covered in the interests of justice. Given the complexities of today's media marketplace, as Emily Bazelon described in Slate, it's the right balance. (And, of course, it only applies when a journalist has received a demand for testimony -- it is irrelevant to deciding who can practice journalism. Anyone can do that.)

Senator Cornyn, the second-highest-ranking Republican in the Senate, knows full well that bloggers are covered by the Act, and that the Act cannot possibly be read to "license" journalists. He was a journalism undergraduate, holds not one but two law degrees, and has been both a Justice of the Texas Supreme Court and the attorney general of Texas. The senator is, by all accounts, a brilliant man who knows perfectly well how to read a bill.

By claiming the privilege in the Act should apply to everyone, Senator Cornyn has one purpose: to kill the Act. It was a purpose he could not accomplish in the Senate Judiciary Committee, where the bill was reported out in a lopsided 13-5 bipartisan vote. It is a purpose that he cannot achieve on the floor of the Senate, given that the bill has 23 co-sponsors and has excellent chances to pass. So the senator has pulled out the poison pill, and has cleverly clothed it in the garb of a First Amendment absolutist.

Don't be fooled. This isn't an attempt to improve the Act, it's an attempt to kill it. The Act in its current form will keep both traditional and non-traditional journalists in all media, print or digital, from having to go to jail to protect their sources. This is not a hypothetical risk -- the New York Times' Jim Risen is in imminent danger of federal prison in a case involving a 10-year-old confidential source that would not stand up under the Act.

As appealing as it might seem to cover absolutely everyone in the United States as a potential "journalist," the result is clear. A privilege held by everyone can be held by no one. In the Disney/Pixar film The Incredibles, the villain Syndrome, jealous of superheroes, has a plan to eliminate them -- simply create technology so that anyone can be "a Super." Because "if everyone can be a Super, no one can."

Exactly.