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The Free Flow of Information acts of 2005 and 2006 died on the congressional vine, so unbridled excitement is the wrong response to the progress that the 2007 act made Wednesday when it was passed out of the House Judiciary Committee on a voice vote.
But Christine Tatum, president of the Society of Professional Journalists, one of the dozens of media groups advocating for the legislation, thinks this year might be different–and not simply because Democrats now control both houses of Congress. After all, the act’s most ardent supporter in the House is Mike Pence, and in the Senate it’s Richard Lugar, both Indiana Republicans. Tatum’s been lobbying for the bill, and she senses a sea change–“I’ve heard it over and over from people that they are not at all comfortable with seeing journalists compromised to the extent they have been in recent months.” Regardless of what they think about Scooter Libby, they were “simply bothered by the fact so many journalists were traipsed into court [by prosecutor Patrick Fitzgerald] to help make the case.” And some congressmen didn’t like the drift of the BALCO investigation out in California, where the two San Francisco Chronicle reporters who broke the story were threatened with jail for protecting their source on grand jury testimony. It’s not that all these congressmen are First Amendment absolutists, says Tatum; it’s that there’s a way of life in Washington, D.C., in which reporters and politicos casually swap information, use each other, and protect each other, and the politicos want to hang on to it. Tatum, who’s an editor at the Denver Post, says a reporter at the Post who wants to use an anonymous source has to clear it with the editor; at her last paper, the Chicago Tribune, she’d have had to clear it with the managing editor. In Washington, anonymity “really does seem to be a way of life.”
Reporters in 49 states enjoy some kind of state protection, but media protection in federal courts is an aching void. Tatum and I were both amused by a column last month by Newsweek‘s Jonathan Alter that touted the Free Flow of Information Act and recommended a “Lysistrata Strategy”–no more acts of “mutual satisfaction” between reporters and congressmen until the congressmen promise to vote to pass it. Let me offer another line of thought that I’m confident our shrewder elected representatives have taken into account: journalists make perfect whipping boys (remember how we lost the Vietnam war?) because we’re arrogant and out of control. Once reporters are seen taking perp walks like everybody else, it becomes a lot harder to take them seriously as the cause of all our ills.
The Free Flow bill’s not perfect. It says federal courts and prosecutors “may not compel a covered person to provide testimony or produce any document related to information possessed by such covered person as part of engaging in journalism, unless–” and then there are more exceptions than any journalist will think necessary. An exception Tatum finds particularly obnoxious requires journalists to reveal the identity of anyone who’s disclosed “a trade secret of significant value in violation of State or Federal Law.” Trade secrets way up there and the First Amendment somewhere down below? But Tatum says Judiciary Committee chairman John Conyers was rolled hard by the U.S. Chamber of Commerce, and trade secrets was the price of his support.
As it stands, the bill says that if you enjoy “financial gain or livelihood” from journalism, you’re a journalist. That means bloggers are protected if they have a little money coming in–a criterion that has a lot of bloggers’ noses out of joint.