Sen. Dick Durbin: Journalists Deserve Protection But We'll Decide Who's Actually A Journalist

from the trade-your-laptop-in-for-a-notepad-for-extra-journo-cred dept

Illinois Senator Dick Durbin has penned an editorial for the Chicago Sun-Times in which he argues that journalists need some form of government-granted protection, but that the government should decide who is a real journalist and who isn’t.

As he points out, there is currently no national “shield” law that protects journalists and their sources, although a bill along those lines is slowly making its way through the system. Durbin seems to feel a great many people should be excluded from this protection, though — possibly for no other reason than the platform used.

The media informs the public and holds government accountable. Journalists should have reasonable legal protections to do their important work. But not every blogger, tweeter or Facebook user is a “journalist.” While social media allows tens of millions of people to share information publicly, it does not entitle them to special legal protections to ignore requests for documents or information from grand juries, judges or other law enforcement personnel.

There’s your new have-nots, if Durbin’s deciding. Here’s the list of who Durbin feels actually deserves the “journalist” label and its associated protections.

A journalist gathers information for a media outlet that disseminates the information through a broadly defined “medium” — including newspaper, nonfiction book, wire service, magazine, news website, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.

The internet: illegitimate journalism. Journalism isn’t a static object with a single definition, it’s something people do, with or without the title, and the dissemination of these endeavors spans many platforms. While there are a lot of old school journalism outlets listed, Durbin also includes “news website,” which covers a whole lot of gray area (Buzzfeed? TMZ? Vice?). Without further details, it would appear a “news website” will probably have to be anchored by one of the other “time-honored” journalism outlets.

If a newspaper journalist writes a blog on the side or maintains a Twitter account, are those sidelines protected because of his or her position, or is it only what appears on the printed page/associated news website? Or conversely, if someone’s journalism efforts are mainly relegated to platforms not covered by Durbin’s list but occasionally contribute to “legitimate journalism,” does that cover the non-associated online work as well? No matter how these instances play out, “journalism” is being defined by media form rather than by the activity itself. While the government should recognize freedom of the press and grant protection to journalists, it becomes problematic when the definition is narrowed to pre-existing forms that don’t truly reflect journalism as it exists today.

Durbin says that those who think the government shouldn’t be able to define journalism need to be reminded that 49 states already do just that. That doesn’t make these definitions better or more acceptable and certainly shouldn’t be taken as some sort of tacit permission for the federal government to define what media forms it will protect and which it won’t.

He goes on to cite recent events as evidence this protection is needed.

The leaks of classified information about the NSA’s surveillance operations and an ongoing Justice Department investigation into who disclosed secret documents to the Associated Press have brought this issue back to the forefront and raised important questions about the freedom of speech, freedom of the press and how our nation defines journalism.

Journalists should certainly be shielded from those who think they should be prosecuted for exposing leaked documents. But this administration isn’t interested in protecting whistleblowers and, if it wasn’t running up against existing “freedom of the press protections,” would probably be punishing journalists as well. Allowing the government to pick and choose who is protected will likely result in a large number of unprotected journalists, thanks to an inadequate definition. And even this additional protection is unlikely to prevent entities like the DOJ from violating the Fourth Amendment in a search for sources and whistleblowers. If you’re already violating civil liberties, breaking a law isn’t much of a concern.

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Comments on “Sen. Dick Durbin: Journalists Deserve Protection But We'll Decide Who's Actually A Journalist”

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That One Guy (profile) says:


Let the government and their PR teams masquerading as ‘independent news agencies’ determine who is and is not a journalist, and therefor is entitled to the legal protections of one? He can’t be so naive as to miss the massive possibility for abuse there, so I can only assume he just doesn’t care.

‘Well, looks like news groups A, B and D are making sure to only report on what we want them to and make us look good, so they’ll be entitled to the protection of the law for another year. News group C on the other hand not only didn’t do what we told them to about the information that was leaked to them, they made us look very bad in the process, so I’d say they won’t be getting the protection of the law as ‘journalists’ this year.’

Loki says:

Re: Really?

I’m totally OK with letting the government determine who a legitimate Journalist is, and who’s just some wannabe hack.

After all, not every person who writes has journalistic integrity.

I just have one caveat.

I get to determine who the People’s Representatives are and who’s just a corporate shill.

After all, not every member of Congress is really serving the public.

Donglebert the Needlessly Obtuse says:

It's a common thread through most of the discussions on TechDirt

If you believe a fundamental principle needs subdividing and classifying in its application, then it’s inevitably going to be open to abuse. It’s better then to question whether it’s better to apply simply it across the board, scrap it completely, or carry on adding complexity. All 3 options will create errors and anomalies, but only the 3rd actively creates more work for lawyers.

The Real Michael says:

Re: USAPravda

They’re trying to establish a state-run media by defining via legislature which sources are entitled to legal protection and which aren’t, similar to how they attempt to dictate what one can or cannot say via anti-bullying laws. It’s a form of doublethink taken straight out of 1984: you have freedom, yet one side of the equation is afforded legal entitlements, which in and of itself is an act of discrimination, not to mention a blatant violation of the First Amendment.

DannyB (profile) says:

Re: USAPravda

Defining who gets protection is the stick.

On the flip side is the carrot. Real government run media, such as CNN, get access to talking heads in government, to embed reporters in sanitized military settings, and other privileges.

The government doesn’t ask much. Really. Just a trifle. Just vilify whoever the government labels a terrorist and praise whoever the government labels a hero. Support the right policies, and you’ll go far in journalism.

Anonymous Coward says:

Federalist Papers: Journalism or Blogging?

Do the Federalist Papers count as journalism in Dick Durbin’s book?

Wikipedia: Federalist Papers

The Federalist Papers are a series of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay promoting the ratification of the United States Constitution. Seventy-seven were published serially in The Independent Journal and The New York Packet between October of 1787 and August 1788.?

Though the authors of The Federalist Papers foremost wished to influence the vote in favor of ratifying the Constitution, in Federalist No 1 they explicitly set that debate in broader political terms:

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.

At the time of publication the authorship of the articles was a closely guarded secret, though astute observers discerned the identities of Hamilton, Madison, and Jay.?

The authors used the pseudonym “Publius”?

Were these guys genuine ?journalists? ? Government-approved journalists? Members of the Society of Professional Journalists? Fox News commentators? Graduates from an accredited institution of higher journalism?

Or were they just no-account bloggers?

The chief question: Would Senator Dick Durbin from Illinois be willing to grant the freedom of the press to Publius?

Anonymous Coward says:

Re: Re: Federalist Papers: Journalism or Blogging?

I wouldn’t call the Federalist Papers “journalism”.

So, in your opinion, The Independent Journal wasn’t doing journalism.

The Independent is primarily remembered for being one of several newspapers to have published the Federalist Papers?

It was non-journalism journal, then?

John Fenderson (profile) says:

Re: Re: Re: Federalist Papers: Journalism or Blogging?

A newspaper obviously includes primarily journalistic pieces. It also contains non-journalistic things, such as opinion articles.

None of this is relevant to anything, though. Speech is not less important, and should not be more restricted, because it’s not “journalism”.

Anonymous Coward says:

Re: Re: Re:2 Federalist Papers: Journalism or Blogging?

A newspaper obviously includes primarily journalistic pieces.

The infamous Issue No. 45 of The North Briton (which the British House of Commons hath solemnly declared to have be uttered by one John Wilkes, elswhere known as sometime member of parliament and journalist), was that a newspaper, doing journalism?

How about those ?several weekly very seditious papers intitled, ?The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380, London, printed to J. Wilson and J. Fell in Paternoster Row,? containing gross and scandalous reflections and invectives upon his majesty?s government? ?were those newspapers, doing journalism?

John Fenderson (profile) says:

Re: Re: Re:3 Federalist Papers: Journalism or Blogging?

Instead of listing a bunch of publications and asking the meaningless question of “is this a newspaper?”, why not just say what point you’re trying to make? Because I truly don’t understand what that could be.

Whether or not any given speech is “journalism” is simply not relevant, or shouldn’t be, anyway. All speech should be protected, and there is no point in trying to categorize it for this purpose.

Anonymous Coward says:

Re: Re: Re:4 Federalist Papers: Journalism or Blogging?

Because I truly don’t understand what that could be.

Here’s a short article on ?Wilkes, Liberty, and Number 45?. I’d call your attention to specifically to two passages from that article. Firstly, a passage on the infamous issue no.45 of The North Briton:

George III was furious, and ordered the arrest of the author of No. 45. The attorney general and the solicitor general were asked whether the paper warranted prosecution. April 27 they announced their opinion?it was seditious libel, designed to turn public opinion against the king?and drew up a warrant for his arrest. The prosecution, though, made procedural blunders that Wilkes used to his advantage. First, they issued a general warrant, which named “the authors, printers, and publishers, of a seditious and treasonable paper intitled ‘the North Briton, number xlv,'” but gave no names. General warrants were of dubious legality, since they authorized the king’s officers to seize anyone they suspected. Forty-nine people, most of them innocent, were arrested.

Secondly, a passage from that article on the impact in the North American colonies:

Wilkes’s fame spread far beyond London: his bitterest wrangles with the government were in the 1760s and 1770s, just as British subjects in America were engaged in their own disputes with the king’s government. Like Wilkes, the colonists resented the general warrants used against them, and they demanded the right to name their representatives. They saw in him a champion of the powerless against the privileged. As historian Pauline Maier has written, “In the years between 1768 and 1770 no English political figure evoked more enthusiasm in America than the radical John Wilkes.”

Then, around the same time, the great case ?and it has been called ?great?, considered as one of the landmarks of English liberty? the great case of Entick v Carrington should also ring a bell for you.

Anonymous Coward says:

Re: Re: Re:5 Federalist Papers: Journalism or Blogging?

To further clarify, I should perhaps add this quote from Mr Justice Holmes:

The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

John Fenderson (profile) says:

Re: Re: Re:6 Federalist Papers: Journalism or Blogging?

I still don’t understand the point you’re trying to make. Can you please just say it outright rather than quoting things without explanation?

As best as I can tell, you seem to think that if speech is important, that means it’s journalism. I maintain that journalism is the reporting of news, and that speech can be important without being journalism at all — and so it’s wrong to anoint certain types of speech as deserving of special protection: all speech should have that protection.

Anonymous Coward says:

Re: Re: Re:7 Federalist Papers: Journalism or Blogging?

Can you please just say it outright rather than quoting things without explanation?

I am telling you that, ?a page of history is worth a volume of logic.?

You glanced through part I of Justice Brennan’s opinion in Marcus? (Again? Because that one’s come up before here on Techdirt.) When Justice Brennan says, ?This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped?, well, you have to have some passing familiarity with the actual history.

I maintain that journalism is the reporting of news

And I’m telling you to take a look at, for instance, the actual content of Issue no. 45 of The North Briton. Which, by the standards of the 1760s, was a newspaper.

John Fenderson (profile) says:

Re: Re: Re:8 Federalist Papers: Journalism or Blogging?

I am telling you that, ?a page of history is worth a volume of logic.?

I got that. I just don’t understand the relevance of it here.

And I’m telling you to take a look at, for instance, the actual content of Issue no. 45 of The North Briton. Which, by the standards of the 1760s, was a newspaper.

Yes, and this is an important point because…?

I officially give up. Perhaps I’m just an idiot, but I’m still no closer to understanding what your point is.

NoSuchAnyone says:

First the Fed reworked telephone law, now journalism

Letting the US Federal government make it’s own rules is bad for the justly governed.

A recent example is the revision of telephone law, where the Plain Old Telephone companies land lines enjoy a different body of privacy law than the now ubiquitous cell phone. An arbitrary and self-serving deliniation was drawn by our legislative representatives between the same conversation held over a land line versus a cell phone, leading to the wholesale cyber stalking of the US public. Monetizing this invasion has cemented the division, making the regulatory capture crowd ambitious to retain their new status quo as the data mining oracles of marketing, data they sell to the government and to anyone else with the money.

The analogy to big media and their ambition to protect their status quo relief, offered to only the biggest media by the very folks they report on, is clear to me.

In the last few decades, many decisions made by the Feds have widened the divide of wealth and power: gerrymandering, refined demographic analysis, public universities pursuing patents, software patents, patenting life forms, public monies spent on private contractors, and special rules for those that reward and protect the sitting elected all come to mind.

It’s a trend that cannot be described as just, repesentative, or as a government by the people, for the people. Denying the citizen-journalist protection is just a timid act of the self-serving elected, and deserves opposition at the ballot box.

Anonymous Coward says:

Criticism From The Anti-Federalist Side (The Federal Farmer)

Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.

???? ????? ??United States Senator Dick Durbin, June 26, 2013

?I confess I do not see in what cases the congress can, with any pretense of right, make a law to suppress the freedom of the press?

???? ????? ??The Federal Farmer, October 12, 1787


John Fenderson (profile) says:

Re: Criticism From The Anti-Federalist Side (The Federal Farmer)

Exactly. This is the thing: the freedom of the press is guaranteed, and not solely for journalism. Not even primarily for journalism. As the discussion and writings of the time make clear, the freedom of the press was primarily to allow the expression of political opinion and criticism of the government.

I am opposed to special laws about journalism. Journalists should have no more or less protection than anybody else who engages in speech.

Anonymous Coward says:

Re: Re: Criticism From The Anti-Federalist Side (The Federal Farmer)

Freedom of the press is not about “the Press” in the news media sense. It’s about the the right to disseminate information to a mass audience and it is a right that is guaranteed to ALL people. At the time it was adopted, the only way to reach a mass audience was through printed materials. The first part of the first amendment guarantees your right to say what you want and the second part guarantees your right to say it to as many as you can reach. It has nothing directly to do with journalism at all although journalism is certainly covered by it.

Votre (profile) says:

What Durbin is conveniently leaving out

Nice try Big Dick…

Yes, 48 states have rules defining journalists.

But the rules only determine who gets issued press passes to cross police lines or attend closed functions. They do not attempt to regulate who is protected under freedom of the press rules – or to regulate who is ‘officially’ allowed report on a news story.

Durbin’s argument is all about the government able to force news reporters to name their sources. And narrowly defining who a ‘real’ reporter is gives them many more arms to twist next time an embarrassing news story gets released.

Once again it’s all about clamping down on government whistle-blowers. Something Durbin doesn’t even have the spine to admit he’s trying to do.

Anonymous Coward says:

Re: Re:

We need to protect journalism. Not journalists.

What is ?journalism??

Consider: ? In connection with the public debate surround the adoption of our present Constitution, and beginning in November of 1787, six essays addressed to James Wilson were published under the byline ?Cincinnatus? in the New York Journal.

Here is a brief passage, and I ask you to consider whether this was ?journalism?:

? It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light, that we may groan under tyranny and oppression without knowing from whence it comes.

But you comfort us, by saying,–“there is no reason to suspect so popular a privilege will be neglected.” The wolf, in the fable, said as much to the sheep, when he was persuading them to trust him as their protector, and to dismiss their guardian dogs. Do you indeed suppose, Mr. Wilson, that if the people give up their privileges to these new rulers they will render them back again to the people? Indeed, sir, you should not trifle upon a question so serious–You would not have us to suspect any ill. If we throw away suspicion–to be sure, the thing will go smoothly enough, and we shall deserve to continue a free, respectable, and happy people. Suspicion shackles rulers and prevents good government. All great and honest politicians, like yourself, have reprobated it. Lord Mansfield is a great authority against it, and has often treated it as the worst of libels. But such men as Milton, Sidney, Locke, Montesquieu, and Trenchard, have thought it essential to the preservation of liberty against the artful and persevering encroachments of those with whom power is trusted. You will pardon me, sir, if I pay some respect to these opinions, and wish that the freedom of the press may be previously secured as a constitutional and unalienable right, and not left to the precarious care of popular privileges which may or may not influence our new rulers.

Is that journalism? Is publication of these sentiments in the New York Journal sufficient to constitute journalism?

Not a journalist says:

Our founding fathers could not have imagined the implications of technology on the safety of the country, your 1st amendment is outdated and need some corrections to protect you from evil people who can harm you from revealing our secrets.
And why not protect journalists? It’s for your own safety and you still have your rights!
1. Create a registry of journalists and issue ID’s to which a journalist must qualify.
2. Background checks to make sure the person is not on a list of fugitives.
That way a government can protect your right to publish without compromising OUR security.

It’s not wrong to have some moderation of any rights you have, that includes your rights to bear arms. We dont want people running around with scary guns. Dont we?
Or even worse, a crazy journalist who tweets “classified” information and then starts shooting people with a scary looking gun!
Or perhaps we can control the medium in which you can publish, that would be ideal.

Our liberties are too old and need to be revoked or updated to protect our government from terrorists…

jupiterkansas (profile) says:

Journalism is something you do, not something you are.

Journalism is simply the reporting to others what has really happened in the world. Anyone can do that. Just because someone found a way to make money doing it doesn’t mean there is legitimate journalism and illegitimate journalism. The only thing that makes journalism legitimate is its truthfulness.

It’s kinda like music and art – anyone can do it. A few make money, but that doesn’t mean they deserve special treatment, or that they can prevent others from making music and art.

John Doe says:

If you have to ask to exercise your right, it isn't a right

So if the government gets to decide who is a journalist; when do they get to make this decision? On a case by case basis? After they decide if they like what you wrote or not? Do you have to register to be considered a journalist? A right you have to ask permission to exercise is no right at all.

Anonymous Coward says:

Re: If you have to ask to exercise your right, it isn't a right

The FCC decides who gets to broadcast over the airwaves or not by granting or not granting a license to do so. They also hold over broadcasters the ability to fine the broadcaster or revoke their license if they say something the FCC doesn’t like.

Anonymous Coward says:

So said definition of journalist disappears with the major news sites closing their physical editions, eh? What will the government call journalist when all news goes on line?

Sounds like this is a setup to eliminate in the future the protections of journalists as at that time, they will be called something else and therefore not eligible for those shield protections.

The fact that Senator Durbin chooses to address this is an indicator of just how far this sort of thing has gone already with nullifying journalist protections. Nixon couldn’t have done it in his time. Why can ignoring these protections already there be possible today when they weren’t possible yesteryear?

Could it possibly be too many years of clueless congress critters making laws nilly willy have created the police state already?

Dan (profile) says:

My letter to [that] Dick

Dear Senator Durbin,

I just read your article in the Chicago Sun Times about defining with whom a journalist should be affiliated. I must say that I am more then upset and disappointed in your opinion as my elected representative. As a former employee of companies like Bell Labs, I have been utilizing the internet as an information source since before its commercialization, when its primary users were universities.

In the last ten years, I have seen more fact checking done by popular blogs then I have from the mainstream media. All the major news outlets seem to run with just about any story as truth, especially one coming from Washington. Perhaps you have a point in that we shouldn?t protect everyone, but I find it more likely you wish to only protect those you already unduly influence. It is unclear to me which stories the mainstream media would have reported on, in the last 10 years, had they not been reported widely in the blogosphere first. Mainstream media is about sensationalism, not a well informed public.

The most important element in a democracy is a free press. How by any stretch of the imagination did you determine that the government is the best body to define what that should be? I don?t see how it could be considered anything other then delusional, that this sort of thing would ever function properly in a free manner. You?re proposed ?law? is one step away from state controlled journalism. I will not allow that to happen.

Unless you print a retraction, I will not be able to vote for you with good conscience in the next election.

That Anonymous Coward (profile) says:

Maybe its time for people to wake up and stop voting for the idiot with the “best” soundbites and actually make decisions about who should represent them and not be afraid to remind them they work for the people.

As they all seem to want to destroy the Constitution and the rights of the people isn’t it time to start removing them from office? They took an oath to uphold the Constitution and they are now more focused and making sure people are unaware of how much of it no longer applies to “We the People”.

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