In its attempt to define who’s a journalist and who’s not, is the US Senate trying to say that Thomas Paine, a corset-maker, wouldn’t have deserved the same protections from government heavy-handedness as a newspaper publisher like Ben Franklin?
The first version of a media shield law that handily made it through the Senate Judiciary Committee on Thursday defined for the first time what constitutes a “real reporter” deserving of extra protection versus what Sen. Dianne Feinstein called a “17-year-old blogger” who doesn’t deserve a legal shield.
While Mr. Paine eventually edited magazines in the United States, he’s best known for his pamphleteering days, when he self-published “Common Sense,” one of the American Revolution’s most poignant calls to arms. Modern bloggers often see themselves as the inheritors of the pamphleteering tradition, and many wondered on Friday whether Paine would be covered under the proposed law.
That Congress is attempting to define “journalist” at all in order to expand protections after a number of high-profile leak cases and ensuing Justice Department prosecutions caused blog impresario Matt Drudge to call Ms. Feinstein a “fascist” on Twitter, suggesting that the law would subvert a free press by giving institutional advantage to government-approved media outlets.
“Federal judge once ruled Drudge 'is not a reporter, a journalist, or a newsgatherer,'” Mr. Drudge, proprietor of the massive news aggregator site Drudge Report, Tweeted Friday. “Millions of readers a day come for cooking recipes??!”
On its face, the proposed shield law doesn’t affect the First Amendment, which at any rate doesn’t guarantee anybody’s right to publish whatever they want. The bill simply adds extra protections against being forced to testify about sources for established reporters and freelancers with a “considerable” amount of publishing experience. It also allows a judge to make a declaration as to who’s a journalist and who’s not in an attempt to build the shield as wide as possible.
“All we’re doing is adding privilege to existing First Amendment rights, so there is, logically, zero First Amendment threat out of this,” said Sen. Sheldon Whitehouse, (D) of Rhode Island.
But conservative bloggers, including some law professors, had a different reaction, suggesting that such a law would give the Department of Justice powerful discretion that could potentially be used to intimidate amateur reporters who are also working in the public interest.
The boom in online news arguably has helped polarize the American political scene, but it has also given readers access to far more data and viewpoints than they had under the system of editors and reporters that make up the traditional American newsroom.
Moreover, largely because the First Amendment extends press freedoms to all Americans, the US has no special licensing requirements for journalists, as many other Western countries do, meaning that the shield law would be the country’s first attempt to create what critics call an “elite” tier for the institutional press.
“Journalism is an activity, not a profession,” wrote University of Tennessee law professor Glenn Reynolds, who mans the popular InstaPundit blog.
Some senators agreed. “It strikes me that we are on dangerous territory if we are drawing distinctions that are treating some engaged in the process of reporting and journalism better than others,” said Sen. Ted Cruz, (R) of Texas. “Essentially as I understand this amendment, it protects what I would characterize as the ‘corporate media’…. But it leaves out citizen bloggers.”
The intent of the federal shield is to enshrine in law what, until the Obama administration, had been maintained mostly as a tradition – that reporters shouldn’t have to testify about how or through whom they received sensitive information with a demonstrable public interest.
Fighting back against leakers like Bradley (now Chelsea) Manning, Edward Snowden, and Julian Assange, who have used the Internet to instantly disseminate vast troves of classified data and documents to the global masses, the Obama administration has prosecuted both whistleblowers and reporters who have gained access to that kind of data with an unprecedented vigilance. The administration has also been caught tapping dozens of phone lines at the Associated Press, the nation’s preeminent wire service.
(Ironically, President Obama has said he supports a shield law that critics point out has been made more necessary by the actions of his administration.)
The bill says that a "covered journalist" is a person who gathers or writes news for "an entity or service that disseminates news and information."
The bill, however, does not offer an impenetrable shield.
Federal officials can still “compel disclosure” from a reporter who has information that could prevent a murder or child kidnapping, help stop acts of terrorism, or information that could cause severe harm to national security.