Shield Law Moves Forward, Defines Journalism So That It Leaves Out Wikileaks & Random Bloggers

from the this-is-a-mistake dept

There have been debates on a setting up a special journalist shield law for many years, and every time it comes up it leads to something problematic, as various supporters suddenly want to narrowly define what a journalist is, often in a manner that carves out new forms of media. And, indeed, it appears that's exactly what happened this morning in the Senate Judiciary Committee. Eventually, the bill passed out of committee with a much broader definition than some feared, but one that still tries to define who is a journalist very specifically -- in a manner that "carves out" the specific kinds of journalism Congress doesn't like, such as Wikileaks.
The new amendment, brokered by Sen. Chuck Schumer, significantly expands on that definition. Now, a journalist would be defined as someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist.

In addition, the law would protect a person deemed appropriate by a federal judge, so long as their newsgathering practices have been consistent with the law.
This is better than it could have been, and giving judges the ability to go beyond the narrow definition is at least better than the alternative. However, it still is an attempt to carve out certain types of journalism that Congress is uncomfortable with -- and frankly, I'm rather uncomfortable with Congress thinking that its role. Chuck Schumer flat out said that he wanted this definition to exclude Wikileaks -- which is an operation that many of us believe absolutely is a journalistic operation.
"The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that," Schumer said at the time. "But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill."
In fact it seems like a good part of the hearing this morning was an attempt for Senators to show their contempt for the types of journalists they don't like. Senator Feinstein, who has been pushing for a very narrow definition for a long time, suggested at the hearing -- as if it were self-evident -- that no 17-year-old high school drop-out with a blog should be covered. But why? What if that high school drop out does actual journalism and breaks a story about, say, government corruption? Why shouldn't she be covered? Senator Jeff Sessions went to ridiculous lengths, arguing that journalists who reveal classified info shouldn't be covered. In other words, those who do real investigative journalism and expose government wrongdoing wouldn't be considered journalists if his amendment had passed (thankfully, it didn't). But, as Senator John Cornyn pointed out, just the fact that you had the Senate debating who should and who shouldn't be a journalist should be "chilling to us all." Though, of course, even Cornyn wanted to only cover journalists who are Americans.

In the end, what passed is extremely flawed and definitely not a step in a good direction. Once we reach the point at which we even allow Congress to set parameters for who should, and who should not be considered a journalist, we've gone too far. Because we know that setting that precedent will lead to further encroachments down the road. Furthermore, the current definition will almost certainly not protect journalists when they need it most, in stories involving "national security," more or less making this law a dead letter on arrival.

We've long advocated that any shield law shouldn't try to define journalists by their profession, but rather should focus on journalism by the process and actions taken. That makes much more sense, since today anyone can do journalism, even if they're not employed as a journalist.

However, the more I've seen this process play out, the more I'm convinced that any media shield law is a bad idea in that it tries to set up a separate tier of free speech in which a certain class of people or certain actions are "more protected" than others. The argument that we already have a media shield law known as the First Amendment is an increasingly compelling argument.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 12th, 2013 @ 1:05pm

    Not a shield, it's stealthy knife in back to all but media elites.

    C'mon, Mike, work with me on the Populist front: even discussing this with "shield" or "law" is conceding too much.

     

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  2.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:06pm

    Re: Not a shield, it's stealthy knife in back to all but media elites.

    Much as I hate to say it, I have to agree here. IT seems almost solely designed to abuse the hell out of bloggers, such as Popehat and DieTrollDie.

     

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  3.  
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    Pi, Sep 12th, 2013 @ 1:14pm

    My words can't do justice, so I'll just go with something I read once.

    "Congress shall make no law respecting ... or abridging the freedom of speech, or of the press"

     

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  4.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:14pm

    can't this be beaten by someone creating a shitty small online tabloid and handing out $1 non-exclusive-employment contracts, and letting people submit whatever they want w/ no editing required?

     

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  5.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:15pm

    Gov definition Journalists: People we can control

     

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  6.  
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    Enumerated Rights, Sep 12th, 2013 @ 1:16pm

    Conditional grant or attempted removal of rights?

    "The argument that we already have a media shield law known as the First Amendment is an increasingly compelling argument."

    Precisely. While media shield laws are portrayed as attempts to protect freedom of speech, they are more likely intended as signals to the courts about which groups and activities congress feels should enjoy no constitutional protections. Hopefully, the courts won't fall for it.

     

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  7.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:22pm

    What a coincidence

    My narrow definition of what a human being is doesn't include the likes of Feinstein.

     

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  8.  
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    wec, Sep 12th, 2013 @ 1:24pm

    I take it from the article that there is no journalistic process defined the proposed law. If that is so does that mean a janitor hired by a newspaper would be protected? How about anybody at the news paper that has nothing to with creating copy or news stories(printers, maintenance persons, etc)?

     

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  9.  
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    Josef Anvil (profile), Sep 12th, 2013 @ 1:25pm

    Merriam-Webster doesn't make the law

    Congress makes the laws, so they should leave the definitions to the people that make dictionaries.

    journalist
    1
    a : a person engaged in journalism; especially : a writer or editor for a news medium
    b : a writer who aims at a mass audience
    2
    : a person who keeps a journal

    Seems easy enough. Those are the people that the shield law should protect.

     

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  10.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:27pm

    Total Information Control in 4 easy steps
    1) Define Journalists as a special class of people.
    2) Require news or comment by a non Journalist to be taken down on demand, and their accounts to be blocked
    3) Require journalists to be registered.
    4) Remove registration from any journalist that does not toe the government line.

     

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  11.  
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    Enumerated Rights, Sep 12th, 2013 @ 1:27pm

    Re: Conditional grant or attempted removal of rights?

    The same, by the way, is likely true of the DMCA. Its conditional grant of immunity to service providers, while important, was most likely intended as a signal to the courts that non-compliance with takedown requests should constitute evidence of contributory infringement.

     

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  12.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:28pm

    Letting congress define who's a jouralist violates the 1st amendment

    The courts need to step in here. Letting congress or the states define who's a journalist and who isn't violates the first amendment.

    Here's how. The first amendment guarantees freedom of the press. But how can there be freedom of the press if the government can redefine what the press actually is at any time so that it can go after 'journalists' it doesn't like? If the government can do that, it renders the 1st amendment protections meaningless.

    And yes, there HAVE been court rulings on something very similar. Courts have already ruled that the government CANNOT say what is and is not a valid religion, because that would be a way for the government to get around the 1st amendment freedom of religion.

    Sure some would argue that wikileaks and the guardian/etc aren't US companies or citizens and therefore shouldn't be covered by the first amendment. But tell me, do you Really think our founding fathers would have been perfectly ok if the government jailed any foreigner it could get it's hands on for criticizing the US government in even the tiniest way, while insisting to US citizens "you have free speech, we aren't arresting any Americans who criticize us"?

    Obviously such actions would have a chilling effect on free speech of US citizens to, who would fear that despite what the government says it'll lock them up to for doing the same thing they're arresting foreigners for.

     

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  13.  
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    Anonymous Coward, Sep 12th, 2013 @ 1:36pm

    Assange Extradition Forthcoming...?

    You gotta wonder why, and why now? Sure, maybe it's the NSA leaks stuff, but don't be surprised if there isn't a surprising opportunity to use these new definitions in the very near future.

     

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  14.  
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    jupiterkansas (profile), Sep 12th, 2013 @ 1:53pm

    Media Outlet?

    Great, they've defined what a journalist is.

    Now define what a "media outlet" is.

    If I buy a URL and set up a website, that's basically a media outlet. Three months of piddling and I'm a journalist.

     

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  15.  
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    jupiterkansas (profile), Sep 12th, 2013 @ 1:54pm

    Re: Letting congress define who's a jouralist violates the 1st amendment

    I don't think courts can step in until the law is passed.

     

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  16.  
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    Rapnel (profile), Sep 12th, 2013 @ 2:16pm

    It would seem to me that Congress is not even half filled with representatives. What the hell do we call the other half?

     

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  17. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Sep 12th, 2013 @ 2:21pm

    Sounds like bad news for a certain doughy tech blogger who claims to "do journalism" on occasion.

     

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  18.  
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    JWW (profile), Sep 12th, 2013 @ 2:29pm

    The First Amendment

    The First Amendment is either a shield for everyone or it is a shield for no one.

    The fact that our lawmakers are even having this discussion makes me sick.

     

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  19.  
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    PRMan, Sep 12th, 2013 @ 2:34pm

    Re:

    Bought?

     

    reply to this | link to this | view in thread ]

  20.  
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    That One Guy (profile), Sep 12th, 2013 @ 3:01pm

    Re:

    Private sector employees.

     

    reply to this | link to this | view in thread ]

  21.  
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    Matt, Sep 12th, 2013 @ 3:23pm

    Everyone is student journalist

    If you are a blogger & concerned you may not be protected by this law, you should sign up for a journalist course. I'm sure there are thousands of community college or online courses that you could work your way through. Consider the cost as insurance for not meeting the limited definition the government have lumped on us.

     

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  22.  
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    THomas, Sep 12th, 2013 @ 3:52pm

    reporter shield laws

    Wasting time on the taxpayer's dime. Too many exceptions; violates the equal justice clause at minimum. By the proposed law's standards I would not be considered a journalist although I write and publish "features" through my one-man 'net-paper, free of charge. I have a journalism bachelor's and worked large daily newspaper beats for 10 years -- but 30 years ago; so, age-discrimination as well? Also, I wouldn't be considered a "journalist" even though a court case involving me and one of my stories had set the first legal precedent supporting our state's shield law. Sen. Schumer is dumb and nuts and I shouldn't even waste my time letting him know it. But I better hurry if I do, before the witch hunt.

     

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  23.  
    identicon
    THomas, Sep 12th, 2013 @ 3:54pm

    reporter shield laws

    Wasting time on the taxpayer's dime. Too many exceptions; violates the equal justice clause at minimum. By the proposed law's standards I would not be considered a journalist although I write and publish "features" through my one-man 'net-paper, free of charge. I have a journalism bachelor's and worked large daily newspaper beats for 10 years -- but 30 years ago; so, age-discrimination as well? Also, I wouldn't be considered a "journalist" even though a court case involving me and one of my stories had set the first legal precedent supporting our state's shield law. Sen. Schumer is dumb and nuts and I shouldn't even waste my time letting him know it. But I better hurry if I do, before the witch hunt begins.

     

    reply to this | link to this | view in thread ]

  24.  
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    Anonymous, Sep 12th, 2013 @ 3:56pm

    Re: Re: Letting congress define who's a jouralist violates the 1st amendment

    And if the law is passed, journalists will be...
    ...wait for it...
    agents of shield!

     

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  25.  
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    Watchit (profile), Sep 12th, 2013 @ 4:00pm

    It's quite simple. Hand over wikileaks so that it is solely run by student journalists. I think it would be hilarious to see congress react to that.

     

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  26.  
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    Anonymous Coward, Sep 12th, 2013 @ 4:02pm

    I find this whole idea of defining who and who isn't, a journalist, extremely offensive. This whole argument reeks of totalitarian corruption.

    Congress' job isn't about defining job descriptions. Their job is to support and uphold the Constitution of the United States.

    This country is turbo flushing down the shitter.

     

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  27.  
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    Anonymous Coward, Sep 12th, 2013 @ 4:30pm

    I don't recognize their stupid definition just like I don't recognize copyright. Suck it

     

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  28.  
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    Anonymous Coward, Sep 12th, 2013 @ 4:41pm

    This is absurd what kind of bureaucracy doesn't make it obligatory for a Journo to be "licensed" or be affiliated with an union?

     

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  29.  
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    FM Hilton, Sep 12th, 2013 @ 4:50pm

    Be careful of laws

    If this gets enacted, I'm sure that the very first blogger who gets busted for having broken the law by shielding their sources will be very well lawyered up.

    I mean, taking on the First Amendment is so Supreme Court ready..they love deciding cases on it, and I'm pretty sure that they'll have the last say on who a journalist is.

    Because they happen to understand and have read the Constitution, unlike these people who pretend to have read it.

    Just the thought of a majority opinion on the issue brings tears of joy to my eyes.
    The court happens to rarely turned down a case with the First Amendment clause, and they never (to my knowledge, scanty as it may be)issued a ruling denying it.

    Of all the Amendments the Court cites, this one is the only one that they revere, and that's a good thing, because if it weren't for that one set of people, we'd have a far different country than the one we're in now.

     

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  30.  
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    Anonymous Coward, Sep 12th, 2013 @ 5:34pm

    Re:

    a congressperson would be defined as someone elected or appointed to a political office where they have read at least one bill in its entirety within the last 3 years or 50% of three bills within the last five years; someone with a substantial track record of coherence in the last five years; or a student body president.

     

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  31.  
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    jupiterkansas (profile), Sep 12th, 2013 @ 6:04pm

    Re: Be careful of laws

    They don't have to bust anyone. The threat alone will shut most people up, and the few who do go ahead will simply be discredited.

     

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  32.  
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    blaktron (profile), Sep 12th, 2013 @ 6:59pm

    Re:

    Because suddenly WikiLeaks is what is going to start them respecting the constitution? I'll hope for that when the last official calling Glenn Greenwald a criminal is out of office.

     

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  33.  
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    Anonymous Coward, Sep 12th, 2013 @ 7:19pm

    whoa!

     

    reply to this | link to this | view in thread ]

  34.  
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    Atkray (profile), Sep 12th, 2013 @ 9:23pm

    Re: Media Outlet?

    Just make sure you are using the .news domain.

     

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  35.  
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    Hephaestus (profile), Sep 12th, 2013 @ 9:37pm

    Re:

    That is brilliant.

     

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  36.  
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    Anonymous Coward, Sep 12th, 2013 @ 11:49pm

    Re:

    And they said the Communists were the biggest danger to America!

     

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  37.  
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    james b.bkk, Sep 13th, 2013 @ 4:07am

    Re: Re: Not a shield, it's stealthy knife in back to all but media elites.

    We already have a shield law. It's called the Constitution.

     

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  38.  
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    Ninja (profile), Sep 13th, 2013 @ 7:06am

    Re: Re: Re: Letting congress define who's a jouralist violates the 1st amendment

    By that logic Nick Fury is ... *ominous drums*... the chief editor. I have this funny image of Hulk sitting on a desk typing his latest news piece: "HULK SMASH!"

     

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  39.  
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    The Real Michael, Sep 13th, 2013 @ 8:37am

    Re:

    100% on the money.

    This so-called 'Shield Law' is nothing more than window-dressing applied to a form of government regulation -- in this case, attempting to define what constitutes a journalist. Put simply, it represents government intrusion upon freedom of press and is thoroughly unconstitutional. It's obvious the government desires to control information (i.e. propaganda), but since they cannot control independent news sources, they must manufacture a problem or crisis in order to present a solution, a *solution* which inevitably involves curtailing people's rights. They want an ignorant, uninformed populace which goes along with the 'official' story like sheep.

    The single greatest threat to those in power is for there to be no threat, otherwise they cannot legitimize the existence of all these unconstitutional programs and agencies. "We've always been at war with Eurasia."

    Now you know why they want to create a national registry database for gun owners, so that they can confiscate them.

     

    reply to this | link to this | view in thread ]

  40.  
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    Anonymous Coward, Sep 13th, 2013 @ 1:49pm

    in other words, the ones they dont like are left out. that way, if anything is posted or printed that isn't liked, the person(s) can be arrested. yet again, a law that picks and chooses who can tell what, just in case there is something that everyone should know, but the ones concerned are too scared that their back handed antics could lead to some sort of criminal procedure. typical 'i'll cover asses' political move!!

     

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  41.  
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    Anonymous, Sep 13th, 2013 @ 3:15pm

    Re: Re: Re: Re: Letting congress define who's a jouralist violates the 1st amendment

    White Nick Fury or black Nick Fury? He's a shapeshifter, I tell ya!

     

    reply to this | link to this | view in thread ]

  42.  
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    Anonymous, Sep 13th, 2013 @ 3:17pm

    Re: Re: Re: Not a shield, it's stealthy knife in back to all but media elites.

    Yyyyyeah...THAT'S been working out for us real well lately...

     

    reply to this | link to this | view in thread ]

  43.  
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    Former employee of media outlet, Sep 17th, 2013 @ 8:38am

    1) Register a new company as a "news service" (NAICS 519110 or maybe 711510) with you as the sole memeber/stockholder
    2) Write whatever you want
    3) Protected!

     

    reply to this | link to this | view in thread ]


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