Sens. Feinstein And Durbin Specifically Try To Carve Citizen Journalists Out Of Shield Law

from the protecting-journalists-or-journalism dept

There was a lot of reasonable concern earlier this year when a much needed federal shield law proposal appeared to ignore participatory journalists and only cover those employed by major media companies. After people complained about this we were relieved to see Senators Chuck Schumer and Arlen Specter change the bill to cover participatory journalism as well. As they realized such a law should be about protecting acts of journalism not some arbitrary definition of journalists.

Unfortunately, it looks like some other Senators disagree. Karl Bode alerts us to the news that Senators Dianne Feinstein and Dick Durbin are specifically trying to limit the bill to only covering major media journalists. It’s hard to see any rationale for such a move, but it does seem rather obnoxious. One of the fundamental points of a strong media is the ability to protect their sources. Without that, it’s that much harder for the media to actually hold anyone accountable, since sources will be more afraid to reveal important information. Why would Senators Feinstein and Durbin be so against protecting the process of journalism?

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Comments on “Sens. Feinstein And Durbin Specifically Try To Carve Citizen Journalists Out Of Shield Law”

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52 Comments
Anonymous Coward says:

Consider this concept: In order to avoid prosecution on conspiracy charges, one or more of the people involved in the planning opens a website that talks in general terms about the major crime they committed (let’s say armored car robbery). Now, everything that they were told by others in the scheme would become “privileged” information, and they wouldn’t have to share the source. In fact, the more they posted about the crime, the less they would have to say in court and the less likely they would ever have to reveal their partners names.

Let’s also talk about the potential to make stuff up and attribute it to someone else, a “secret source”. Really, that source is just those funny voices in your head, but as a journalist, you have a right to protect your sources. So you end up in a situation where anyone can be a citizen journalist, report what the voices in their heads say (even if those voices are wrong) and never be liable for anything they say.

The simple concept of writing a blog isn’t enough to qualify anyone as a journalist. Mike, even you have clearly admitted that you aren’t a journalist, just someone starting discussions.

Chronno S. Trigger (profile) says:

Re: Re:

That first scenario is just outright stupid. Stupid on a pretty epic level. 1) no one would ever do that. 2) they would not be able to protect their sources since it wouldn’t be a trial about the report. They are not being pulled in as a reporter they would be pulled in as a criminal.

“Let’s also talk about the potential to make stuff up and attribute it to someone else, a ‘secret source'”
is also stupid once you realize that major media journalists already do this.

How would you define major media journalists? Must they work for Fox news or make more than $50,000/y? Must they be full time employed by a major media outlet? How do you define that? Since the government made the damn law they must define a line (and we see how good they are at that).

ChimpBush McHitlerBurton says:

Re: Re:

“Let’s also talk about the potential to make stuff up and attribute it to someone else, a “secret source”. Really, that source is just those funny voices in your head”

Oh, you mean like “mainstream” “journalist” Glenn Beck?

“People are saying…” (insert bogus anti-liberal claim here)

CBMHB

Ima Fish (profile) says:

It’s hard to see any rationale for such a move

To protect journalists employed by corporations which make large campaign donations.

Why would Senators Feinstein and Durbin be so against protecting the process of journalism?

Obviously Feinstein and Durbin do not give a rat’s ass about protecting journalism, only about protecting the business of journalism.

A-dub says:

So what defines a journalist? Would starting an LLC qualify a person to be a salaried journalist? Do you have to have a degree? What if someone starts a non-profit that “hires” bloggers and other non-journalists who basically volunteer their time? Would they fall under the protections? Will there be a list of companies that a journalist must work for in order to receive protection?

Dark Helmet (profile) says:

Re: Re:

“So what defines a journalist?”

You’re not paying attention, because that’s the same wrong question everyone else is asking. The RIGHT question is: what defines journalism?

Well, the 1a and 2a definitions, or those most common, are:

1a — the collection and editing of news for presentation through the media

and

2a — writing designed for publication in a newspaper or magazine

Note that nowhere in those definitions is there anything about accreditation or officiality. The first says that you need to be collecting or editing news to be reported to others through some undefined entity called “the media”. Note also that it does NOT say “mass media”, so I believe most would agree that the internet and blog sites would qualify as a part of “the media”.

What’s interesting about the 2nd definition is that there is no requirement of actually being published. It must only be DESIGNED for publication in a newspaper or magazine (or webzine?).

Which brings us directly back to the point I originally wanted to make: Senators Feinstein and Durbin do not understand the English language. Ergo, they are likely illegal immigrants, and I believe they should be impeached immediately…

Anonymous Coward says:

Re: Re: Re:

Both of those require something else, something just as important, in that they have to be done all the time in a regular fashion. Just collecting and editing the news on a single day doesn’t make you a journalist, it just makes you a reader.

The whole process is something that needs to be ongoing, not done on occassion.

As a side note, journalists tend to try to get both sides of the story, or at least to make a passing attempt at checking facts. Most blog writers (Mike included) are more often interested in expressing some misdirected moral outrage or to call someone out without actually checking the facts. The difference, while hard to put in words, is clear and obvious – it comes back to intent.

Dark Helmet (profile) says:

Re: Re: Re: Re:

“Both of those require something else, something just as important, in that they have to be done all the time in a regular fashion.”

No, they don’t, and that’s entirely the point. We’re not talking verbs here, we’re talking nouns. We’re defining journalism the noun, and nowhere is there anything in the definitions about regularity or consistency.

“Just collecting and editing the news on a single day doesn’t make you a journalist”

I completely agree with you on that, but if you’re editing the news, it also doesn’t follow that you’re just “a reader”. But again, this is missing the point entirely. Someone who isn’t a journalist CAN engage in acts of journalism, and acts of journalism ought to be protected.

“The whole process is something that needs to be ongoing, not done on occassion.”

Where are you getting that from? Certainly not the common definitions in Merriams-Webster dictionary….

“As a side note, journalists tend to try to get both sides of the story”

BWAH???!!!

“or at least to make a passing attempt at checking facts.”

Er?

“Most blog writers (Mike included) are more often interested in expressing some misdirected moral outrage…”

Like your misdirected outrage at their outrage?

“…or to call someone out without actually checking the facts.”

Okay, I read this blog regularly, and I seem to remember a TON of facts here. I may not always agree with the stats or analysis, and I may even occasionally turn up my nose at some of the evidence provided by what I would consider biased parties on both sides of the debate, but to try to pass this site off as mere factless conjecture based on nothing but tugging other’s emotions is laughable in the extreme.

As my own side note, this site was a lot more fun when you called yourself Weird Harold. In fact, that was going on about a year ago or so. In the spirit of the holidays, won’t you go back to using your old moniker?

Kazi says:

Re: Re: Re:2 Re:

“All the time and in a regular fashion” does meet the definition of once in a blue moon since a definiton of “all the time” is not given.

Once every second?
Twice every second?
Three times every second?
Once every year?
Once every two years?

If you give a definition make it specific and not broad. You can make a lot of journalists not journalists by saying “All the time” and you can make a lot of non journalists journalists by saying “All the time”. The definition is flawed.

Dark Helmet (profile) says:

Re: Re: Re:4 Re:

“All the time as in “a job”, what they do.”

Too ambiguous. How do you define it? There are part-time jobs, seasonal jobs, per contract jobs, temping, etc. etc. etc.

“That doesn’t mean writing opinions (like Mike does here) but actually working in a news environment,”

So editorialists deserve no protection at all?

“It should be the full time profession, not a hobby or sideline.”

This never made any sense to me. Why are we still trying to protect journalists instead of journalism? There’s too much ambiguity in protecting your “full time professional journalists”. How long do they have to have been full time before they get protection? After all, a rookie reporter who has only worked 3 days might be on the full time roster, but he could quit the next day and never work a full week. Or who gets to decide what companies are accredited journalism providers, such that their reporters are protected? The government? That doesn’t work. The mass media execs? That doesn’t work either.

The point is that this keeps getting messy as soon as we start trying to define journalists rather than journalism.

Sneeje (profile) says:

Re: Re: Re:4 Re:

DH is right here, I have to call foul. Exactly how would you define it as their full-time profession? What if you can’t pay the bills based on your journalistic work and have a 40 hr/wk job selling shoes?

Do you even have to be paid? What about those unemployed individuals trying to work for a news organization that do digging/reporting on their own to show their chops?

Monarch (profile) says:

Re: Re: Re:4 Re:

WHAT?!?!?
Some of my favorite Opinion Columnists in actual printed Newspapers only do it as a part time job! And they are Opinion writers, not much different than bloggers on the web. So does it make them professional journalists, just because their opinions get published in a major metropolitan newspaper and not a blog site?

Come on AC or maybe Weird Harold, grow a few brain cells when making an argument.

Ruin20 says:

Re: Re: Re:2 Re:

Why should someone who doesn’t publish on a consistent basis be protected by shield? If I tell a random person on the street my involvement in a secret government plot then I have no expectation of privilege. The point is that a journalist is someone who a source has an expectation of privilege from. Likewise if the person I tell isn’t a regular reporter, him revealing me as a source is no less likely to cause my distrust in him because there was never a basis for trust in the first place. Media should be defined as something that is consistently published, regardless of the size of the market. Otherwise why would you have any expectation of privacy?

The reason this rubs me the wrong way is because when my uncle was murdered, the reason they caught the people who did it was because the cops followed a line of “rumors”. Because my uncle worked in retail, many of those rumors were being passed by people who were in high school or college and could easily have said “I’m writing a piece for the school newspaper, I’m a journalist, leave me alone.” Now, I doubt that would have happened, because a lot of those kids were just kids and not the type of total scumbag that would do that kind of thing, but still.

The protection of privilege should not be left up for grabs. It needs to be concretely defined, not because it’s important to limit the protection (which it is), but to make it clear to those who wish to step forward who they can confide in. If you don’t clearly define who’s a journalist, then it’s hard for people to determine who to trust.

Anonymous Coward says:

Re: Re: Re:3 Re:

“The protection of privilege should not be left up for grabs.”

and why not?

“It needs to be concretely defined, not because it’s important to limit the protection”

But ONLY because it needs to be defined in a way that gives big media an unearned, STOLEN unlevel playing field. You, nor big media, actually believe the absolute nonsense that you spew.

“but to make it clear to those who wish to step forward who they can confide in.”

No, you are artificially making some people who could otherwise be confined a source that can’t be confined in as much by creating a law that compels them to reveal their source for no good reason other than the fact that they’re not a “professional” journalist.

“Likewise if the person I tell isn’t a regular reporter, him revealing me as a source is no less likely to cause my distrust in him because there was never a basis for trust in the first place.”

What if it’s someone you know and hence you trust them based on your prior knowledge of them? and what’s wrong with him NOT revealing the source vs a “journalist” not doing so?

“Why should someone who doesn’t publish on a consistent basis be protected by shield?”

Why should those who publish on a consistent basis be any more protected?

“If I tell a random person on the street my involvement in a secret government plot then I have no expectation of privilege.”

the difference is that with the random person you don’t intend for them to reveal the information to the public in general, whereas with the journalist and even the one time journalist, you do. Perhaps you’re telling the random person to either get them involved in some way or to change their behavior in a way that favors your actions.

Anonymous Coward says:

Re: Re: Re:3 Re:

“rumors were being passed by people who were in high school or college and could easily have said “I’m writing a piece for the school newspaper, I’m a journalist, leave me alone.””

The difference here is that the line of rumors does not consist of someone intentionally broadcasting the information on an information distribution system with the intent for the general public to read it in hopes to get some answers. In your case the questioning happened before the any alleged journalist actually wrote about it and was not the cops knowing who to ask and get answers from was not based on the publication of a journal but was based on prior knowledge to the journal and happened prior to any publication by these high school kids.

But journalism, and public whistle blowing, should be protected even if the person is not a journalist. Often times a non journalist does have something important to share with the public, which is why they are making an effort to go out of their way from what they normally do to report it, because they feel what they have to say is important. and if it’s important enough for them to feel that way then it should be protected once posted because it’s probably important to others as well. There is no need for the government to promote journalism as an industry, it should promote journalism as an endeaver to public knowledge.

Anonymous Coward says:

Re: Re: Re:3 Re:

and one of the problems with mainstream journalists is that it’s all under some intellectual property. I would much rather see a bunch of journalism columns from many different non journalists than to read a bunch of copyright material from journalists any day. With the copyright nonsense I can’t share the story without potentially infringing, for example. I can’t store it or make copies of it. This is just an attempt to limit competition in journalism and to limit the amount of works that are available to the public at non monopoly prices via copyright (since the individual is less likely to copyright his/her material than a huge company). This is all about promoting big business, as the U.S. government always does, at public expense. There is no reason for this law, you are merely making up lame hypotheticals that have no basis in reality. The protection of privilege should apply to bloggers and even one time journalists as well, and as we have shown before there may be many things they could report on that mainstream media and “professionals” ignore completely because they are strongly manipulated by industry (ie: the stuff we discuss here on techdirt). And we all know that the courts will not favor any real journalist, they will play favorites towards the mainstream journalists and other imposters who only present a message that’s in favor of industry.

Anonymous Coward says:

Re: Re: Re: Re:

if a reader is incable of verifying sources than that’s their problem not the blogger’s, besides,citizen journalism is important. The harm of *not* shielding citizen journalists will exceed the good. Besides its not like multi-billion dollar media companies really give a damn about the truth anyways and (as demonstrated in the whole Mass Effect/Fox ordeal) its not like professional journalists always check the facts either, even if they want both sides their stories aren’t always printed anyways (the Fox/Prosilac mess being a perfect example)

Beta says:

There are amendments after the first.

“…[a robber] opens a website that talks in general terms about the major crime they committed… Now, everything that they were told by others in the scheme would become “privileged” information, and they wouldn’t have to share the source. In fact, the more they posted about the crime, the less they would have to say in court and the less likely they would ever have to reveal their partners names.

I am not a lawyer, but doesn’t the fifth amendment mean they don’t have to reveal anything about the crime they committed, website or no website? In a criminal trial, the defendant may take the stand but doesn’t have to.

Aaron says:

A few, or hundreds of thousands

If you were a corrupt politician, like these two obviously are, would you rather have a few thousand journalists poking around you, or hundreds of thousands?

We must not allow any legal division to be drawn between ordinary citizens who report the news and journalists, because there is no real difference between the two that matters.

Jerry in Detroit (profile) says:

Cui Bono

It would appear that Feinstein & Durbin are not attempting to protect the tame journalists in the collective media so much as establishing grounds for prosecuting anyone who has the temerity to check facts or even disagree with them. 200 years ago, such would be called petty tyrants. Of course, if the news appeared anonymously, who could they prosecute?

Jason Buberel (profile) says:

What I just sent to Feinstein

FWIW, here is the quick letter I just dashed off the Senator Feinstein, my elected representative:

Drop your proposed amendment to the Federal Journalism Shield Law!

S. Feinstein:

You have recently sponsored an amendment with S. Durbin that would strip non-professional journalists of the same level of protections that are enjoyed by paid journalists working for ‘recognized’ media companies.

Consider the citizen of a small town who is investigating fraud at the level of their local city council. What are the chances that an ‘officially recognized’ media company or ‘officially licensed journalist’ will cover the story? If that citizen then writes up her findings on her own weblog, should she be denied the same protections?

With the rapid shift of the work of journalism from old-media to new-media, it is more important than ever to be inclusive. We need more people, not fewer, to consider themselves journalists and to be confident that they will not be safe in the ability to publish – via email, on a personal weblog, via Facebook, and Twitter – their findings.

Please drop support of your amendment! You should be looking for ways to promote citizen participation in the world around them, not thwarting it.

Regards,
Jason L. Buberel

Anonymous Howard, Cowering says:

Feinstein:
http://www.opensecrets.org/politicians/industries.php?cid=N00007364&cycle=2010&type=C&newMem=N&recs=0
No entry for Publishing or News, so are those contributions lumped under Lawyers/Lobbyists or TV/Movies/Music?

Durbin:
http://www.opensecrets.org/politicians/contrib.php?cid=N00004981&cycle=2010&type=I&newMem=N&recs=100
#1 contributor (actually, employees and/or PAC, not the firm itself) is associated with a law firm dealing with Mesothelioma/Asbestos, IP, Prescription Drugs, Business Litigation, Benzene. No possible connection with journalism of any sort. Quote from their site (http://www.simmonsfirm.com/): “At the Simmons firm, our copyright lawyers are focused on helping individuals, start-up companies and small to medium-sized businesses protect their ideas through our dedicated copyright services such as IP lawsuits. Our group is staffed with copyright lawyers who have extensive experience in all aspects of intellectual property infringement & copyrights.”

Nope, no conflict of interest or outside influence there. Move along, folks. Nothing to see here. Keep it moving. Thank you.

Dirk Belligerent (profile) says:

The purpose of these actions is to make it abundantly clear that unless you are a sworn loyal member of the Democratic Party’s propaganda establishment, you will be considered an enemy of the state. Bloggers are now doing the job the media used to do and these so-called “journalists” are now little more than stenographers for their fellow travelers in power.

60 Minutes didn’t walk into a half-dozen ACORN offices and prove that it’s a taxpayer-funded criminal enterprise. Dateline didn’t uncover that Obama’s “green jobs czar” was a self-proclaimed Communist and 9/11 Truther. The NY Times readily exposed anti-terrorism programs and compromised national security and collected a Pulitzer Prize for their (what would’ve been called in a sane age) treason, but now refuses to cover the ClimateGate scandal in which hackers blew the lid off the multi-trillion-dollar worldwide governance scheme called “global warming” because to do so would require abandoning their statist agenda and religious belief in ManBearPig.

The media is dying because savvy readers have realized that they are being lied to and who wants to shell out hard-earned money for worthless propaganda? Readers are leaving and advertisers have no use for papers without readers. If the media had only done their jobs – report the 5 Ws instead of declaring jihad on Dubya – and not tried to “change the world,” they wouldn’t be in their predicament. Trying to scare citizen reporters into silence by refusing to protect them under the Constitution is just the statists trying to maintain their grip on power by making sure the sheeple only get approved propaganda lest they start waking up to the scam. To paraphrase Bryant in “Blade Runner”: “If you’re not approved press, you’re little people.”

Daemon_ZOGG (profile) says:

Senator Feinstein is a FASCIST WORM The World Can Do Without...

Aside from her issues with the journalism crowd, she also has ultra-extremist views when it comes to US gun control:

http://www.ontheissues.org/domestic/Dianne_Feinstein_Gun_Control.htm
“..Feinstein unveiled a gun control proposal that would require federally approved licensing of all owners of handguns and certain semi-automatic weapons.”

http://home.nra.org/#/home

;()

Anonymous Coward says:

Re: What ever happened to...

Doesn’t this fly in the face of creating laws against a free press? Who the hell are these two senators to tell the public who or what the press is? Same goes for some bloated corporation.

Have you ever read any of the papers published by our Founding Fathers? They are downright dastardly. I say it is time to bring that type of journalism back.

robin (profile) says:

Judiciary Committee Update

as of today, 12/3/09, the judiciary committee (privately of course) did not vote to advance s.448:

http://judiciary.senate.gov/

it was “held over”.

interestingly though, the knuckleheads did vote on and approve an amendment by senator spector (amandment hen09b24) defining in sec. 10(2)(a) a covered person (according to the legislation)

means a person who—

with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest,…. regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by conducting interviews, making direct observation of events, or collecting, reviewing, or analyzing original writings,statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings,tapes, materials, data, or other information whether in paper, electronic, or other form;…blah blah blah

essentially blocking fienstein. she’s a crafty witch though and she’ll be back.

i’d like to think that this vermonter calling chairman leahy’s office this morning made a difference……nah.

Anonymous Coward says:

Re:

So, people who engage in journalism as a hobby are not journalists.

That’s pretty neat that you can just make such a statement and it’s automatically true.

I guess that’s the same as how volunteer firefighters are not firefighters, and people who fly their own planes every once in a while are not pilots.

Open source developers certainly aren’t software developers…

Do internet trolls have to do it full time for them to fit the definition too?

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