Sen. Feinstein During 'Shield' Law Debate: 'Real' Journalists Draw Salaries

from the protection-based-on-exclusivity...-what-a-wonderful-idea dept

Legislators are still trying to put together a national “shield” law for journalists (this is the third such effort at a national level) and, as usual, are bogged down in a semantic debate about who should qualify for these protections. Despite “freedom of the press” being hardwired into the system and the fact that a government effort to protect journalists from its own actions (seeking to identify whistleblowers and sources in order to punish them or shut them up) lies somewhere between “ironic” and “disingenuous,” the pursuit of a credible “shield” law continues.

The bill’s definition of “journalist” seems straightforward enough.

The bill defines a journalist as a person who has a “primary intent to investigate events and procure material” in order to inform the public by regularly gathering information through interviews and observations.

It also adds this stipulation, which is a bit more troublesome.

The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.

I can see this stipulation working against whoever the government feels is worthy of the title “journalist.” News develops. It seldom has a distinct starting point. Of course, if someone is a journalist, it stands to reason that they’re always “planning” to publish their findings. But that might be a lot harder to prove when the government starts slinging subpoenas.

If someone sends a tip to a journalist, it may not be immediately evident that it is newsworthy. It might be some time before it’s determined to be important, newsworthy and its source in need of protection. It’s a strange stipulation and one that seems to poke some compromising holes in the “shield.”

But onto the “who’s really a journalist” argument. Some elected officials feel the language in the bill isn’t specific enough. One in particular, Dianne Feinstein, repeated the stupid but inevitable phrase that always accompanies discussions related to shield laws:

Feinstein suggested that the definition comprise only journalists who make salaries, saying it should be applied just to “real reporters.”

This is nothing new for Feinstein, who’s (along with Sen. Dick Durbin) previously made the argument that acts of journalism can only be performed by major news agencies, cutting everyone else out of the protective loop. This is a protective move based partially on ignorance and partially on the reality that major news networks are easier to control, seeing as most aren’t willing to give up access to the Beltway by pissing off its residents.

Sadly, this sort of reactionary ignorance isn’t limited solely to government representatives. This same sort of statement has been made by published authors to demean the self-published and by old school journalists to demean bloggers, serial Tweeters and pretty much everyone not associated with a sinking masthead. Whenever someone assumes they’re capable of determining who is or isn’t a real whatever, they’re usually speaking from a position of privilege, one that can only be maintained as long as the status remains quo.

The same goes for government officials arguing over the definition of “journalist.” It’s someone who performs the act of journalism. It’s as simple as that. But if you accept this definition, then you put the government at a greater “risk” of not being able to pursue and punish those who expose its wrongdoing. Feinstein makes this governmental fear explicit in another comment.

Sen. Dianne Feinstein, D-Calif., wondered whether it could be used to provide protections to employees of WikiLeaks, an organization that allows anonymous sources to leak information to the public.

“I’m concerned this would provide special privilege to those who are not reporters at all,” she said.

Two things to note: One, the government would hate to see people like Snowden or Manning go unpunished because someone at Wikileaks was able to deflect subpoenas and court orders with these protections. Second, this isn’t just a government push — the news industry itself has expressed a willingness to sacrifice Wikileaks in order to expedite passage of a shield law.

It seems rather unlikely the government would extend this protection to entities like Wikileaks (especially not with major news agencies on board with selling out Wikileaks, etc.), but at least Sen. Schumer pointed out that Feinstein’s belief that “real” equals “drawing a salary” was a very ignorant take on the current reality.

“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. “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.”

If this bill is ever going to provide real protection for journalists, it will first have to recognize that journalism isn’t defined by the journalist’s employer, paycheck or association with a large media company. It’s an act and it can be performed by nearly anyone. More importantly, the bill should be equally as concerned with building in strong consequences for government actions that undermine this protection. Without these, entities like the DOJ will hardly be dissuaded from using “unofficial channels” to seize phone records or trace email conversations in order to hunt down protected sources.

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Comments on “Sen. Feinstein During 'Shield' Law Debate: 'Real' Journalists Draw Salaries”

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90 Comments
The Real Michael says:

Re: Special privilege

The government is trying to set a (horrible, horrible) precedent whereby they define which parties deserve Constitutionally-guaranteed rights and which don’t. This would give them the unchecked power to, in effect, control all media sources, just like a third world dictator would.

After all, nothing is more offensive to fascists and communists than freedom of speech and press.

Anonymous Coward says:

Re: Re: Special privilege

People don’t understand, government established broadcasting and cableco monopolies themselves are an abrogation of our rights. They say that those who have such monopoly privileges have better communication rights than everyone else, they have the right to broadcast their message over these channels and to prevent those they don’t like from doing so. No one else does. and it is the government wrongfully giving them this exclusive right. The government is helping a private party to manipulate speech in its best interest giving that party more power to do so than everyone else while preventing everyone else from doing so. It is not the governments position to do so.

We need to abolish government established broadcasting and cableco monopolies for private and commercial use. The media is already held in a government established privileged position. That is what gives them an unfair advantage and what gives them an unfair ability to manipulate who gets elected to maintain their status quo. We need to start with abolishing these monopoly privileges and any other unfair advantages that the government gives some people over others. This includes Dianne Feinstein’s attempts to give certain people shield laws over others. No, everyone should be on a level playing field.

GoldHoarder (profile) says:

Re: Special privilege

I’m concerned that Diane Feinstein has amassed a personal fortune of $100 million dollars working in Government for most of her life. This isn’t even including her investment banker husband’s wealth that she has helped to increase by steering defense contracts to a company he had ties with. Also helping him gain access to the “elite” only auction for large swaths of foreclosed properties at bargain basement prices he husband was allowed in on. But hey. I am sure Diane Feinstein has the American peoples’ best interests at heart.

Anonymous Coward says:

Re: Re: Re: Re:

When the term “Freedom of the Press” was coined, the printing press was really the only effective means of easily disseminating information to the masses, hence the name. However, at the time owning and operating one was very expensive making it prohibitive all but the very wealthy to exercise this right even though it was granted to ALL INDIVIDUALS by the First Amendment and the term the “the Press” was adopted to refer to collectively refer to those who owned and operated printing presses and later was expanded to include other forms of mass media as they emerged. However today this prohibition is no longer exists. Mass dissemination of information is cheap and easy for individuals to do thanks to the Internet. From a Constitutional perspective it HAS NOTHING TO DO with “The Press” but rather the right to mass distribute information. Those pretending it does are trying to conflate the term “the Press” with the right in order to deny the general public of one of another one of their Constitutional rights.

Uriel-238 (profile) says:

Re: Re: Re: Never go full retard.

She won’t be getting my vote ever again.

Again?

It’s been a while that I’ve been voting to keep people out of office than putting people in. It’s a problem with a two-party system is that you don’t have to be good, just slightly less evil than the other guy.

In the last few years I’ve been coming to realize that who’s in office doesn’t matter. Whatever ambitions they had are going to be lost as they either become ineffectual and voted out, or play ball and lose sight of their original goals.

Senator Feinstein has either embittered or become senile in her years, but she no longer has empathy with her constituents, yet I don’t believe anyone we elect in her stead is going to do any better. And, they’ll shit all over gay rights, women’s rights and religious freedoms as well, since the GOP platform requires them to do so.

John Fenderson (profile) says:

Re: Re: Re:2 Never go full retard.

It’s a problem with a two-party system is that you don’t have to be good, just slightly less evil than the other guy.

I’m not sure this is a two-party system problem. I mean, the last couple of presidential elections had candidates from multiple third parties, but every candidate was severely flawed. I still found myself trying to pick the lesser evil, just out of a larger group of fail.

Anonymous Coward says:

JFAA by any other name

Feinstein: “I?m concerned this would provide special privilege to those who are not reporters at all.”

Translation: “I’m concerned this would provide special privilege to those who are simply not entitled to it due to their relative lack of wealth and social status. Those who are not government-licensed journalists might take it upon themselves to speak their minds in public fora without displaying proper respect for (and fear of retribution from) their betters.”

Today it’s a “shield law,” but in a few years, expect to see it used against dissenters and sources of institutional embarrassment in much the same way the CFAA is today, but with much broader scope that isn’t limited to just “facilitated by a computer”.

ss (profile) says:

That's icing for me - I'm anti-fein

If it comes out, from *any* direction, for the benefit of the public, notification as far and as wide that even you can read it over coffee well then I’d call that a free press.

Senator Feinstein, you are derelict in your duties.

The semantics of age old “press” aside, the freedom of your country is at stake and your knowledge of the potential for serious charges of breaching the founding laws of this country make you culpable.

Whistle blowers have succeeded in enlightening the public to misdeeds that are done in our name and you deign to limit and threaten any voice that succeeds in the distribution of facts because they didn’t receive a paycheck from Reuters? I sincerely question your integrity.

The Real Michael says:

Re: Re:

That might be true in most of the MSM but not with regards to independent journalism. The former is losing out to the latter, which explains why MSM attempts to portray anyone outside their close-knit circle as being illegitimate, untruthful, agenda-driven, extremist, et al. It’s imperative that we safeguard and protect the latter from any intrusion or abuse.

DCX2 says:

A little history lesson...

There was once a man, several hundred years ago. He drew his salary not through journalism, but as a customs agent (and occasionally he would help help design bridges, candles).

Then one day, he wrote a leaflet, and signed it anonymously. This leaflet was distributed widely.

According to Sen. Feinstein, this man, who did not draw a salary from journalism, did not deserve First Amendment protections for publishing his leaflet.

The man is Mr. Thomas Paine. The time was January, 1776. The leaflet was Common Sense.

And fortunately for us, Supreme Court precedent is on our side. From Lovell v. Griffin, (1938) Chief Justice Charles Evans Hughes wrote in the majority’s unanimous opinion,

?The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.?

Anonymous Coward says:

No need for the American government to protect wikileaks.

People have been leaking government secrets for thousands of years, so this attitude just means that we are back to the persecution phase of the cycle.

Maybe it is a good thing, it creates value on the leaked information, it means you are putting something at risk, it means you really believe it should be leaked.

Wally (profile) says:

One thing to say about the paparazzi...

Paparazzi by no means should be considered real journalism ….you folks ar TechDirt are a journalists who take your time to inform others of what you dig up….to inform others. You’re not a gossiping speculating organization that invades privacy of public figures. I commend true journalists everywhere that adhere to ethics and accountability 🙂

Anonymous Coward says:

Re: One thing to say about the paparazzi...

The problem with Paparazzi is that they use an erroneous interpretation of the law to exploit another provision of the law designed to protect journalists that are actually reporting news from being sued for copyright, privacy violations, publicity rights violations, etc. when reporting the news.

The provision that protects news reporters is important for a couple of reasons:

1. News often has to be timely in order to effectively serve it’s purpose. Imagine how difficult and time consuming it would be to report on a natural disaster to disseminate important information to the public if the news media had to secure permission from every individual that appeared on camera live on a scene before they could air the footage.

2. It would allow individuals to censor crucial information of public interest simply because they didn’t like the fact that it was being made public or the way it was being presented.

The erroneous interpretation they use is that because a person is famous, basically anything that happens related to them is considered news confusing “in the public interest” with “what the public is interested in” so that they can say that because the public wants to know, people have the right to know even if it is in no way beneficial to the public other than a sensationalistic and/or voyeuristic intrusion of the private lives of other individuals for others’ mere entertainment purposes.

The real issue is not whether the paparazzi should be considered journalists or not, it’s whether what they published should be considered news or not.

Anonymous Coward says:

There isn’t really a problem with who is a journalist. What the real problem is, is that our government is ignoring laws en mass as to what they say and mean. None of this would be an issue provided the US government respected the law.

There are sufficient protections on the books already, except the government doesn’t want to give up the convenience of spying on everyone, any where, any time.

artp (profile) says:

Drawing a salary

That kind of leaves out those poor souls who love journalism so much, or who are so passionate about the issues that they start their own newspaper/magazine/blog and print all sorts of stories.

Having been a business owner, the “salary” for a small business owner is “whatever part of what’s left over at the end of the month that you won’t need for the business in the next two weeks”.

Feinstein needs to get a job!

Anonymous Coward says:

Oh the ‘writers’ at TD are SO Desperate to be considered journalists, but by any definition, you simply are not.

You could start here with a basic code of ethics, that would be a great start, and actually abide by that code.

But I cant see a basic code of ethics being employed here, things like ‘truth’ and ‘accuracy’ and ‘freedom from bias’ and terms not generally known here.

Anonymous Coward says:

Oh the ‘writers’ at TD are SO Desperate to be considered journalists, but by any definition, you simply are not.

You could start here with a basic code of ethics, that would be a great start, and actually abide by that code.

But I cant see a basic code of ethics being employed here, things like ‘truth’ and ‘accuracy’ and ‘freedom from bias’ and terms not generally known here.

Censoring from IP addresses now ??? Really ethical..

Anonymous Coward says:

Re: Re:


Journalist:
a : a person engaged in journalism; especially : a writer or editor for a news medium
b : a writer who aims at a mass audience

Journalism:
a : the collection and editing of news for presentation through the media

Funny, seems to meet the definitions of journalism and journalist…

Strafe says:

Re: Re: Re:

Good point. Basically the argument is that a real journalist is someone who makes an income from it. The very definition of that is “professional”. So I guess this means some people, like Feinstein and the troll you responded to, believe only professional journalists are deserving of protection, while so called amateur journalists are not. This leads me to the inevitable question of why money should be a dividing line at all.

So how exactly does profit legitimize anything? I’d really love an answer to that from people like Feinstein and her supporters. You see the same thing in other creative fields too, like photography for example. Some how a persons work is magically better if they profit monetarily from it, thus giving them the “pro” moniker, and I’ve never understood where people get such silly notions. The internet is full of examples where amateurs blow away the pros.

JMT says:

Re: Re:

“Oh the ‘writers’ at TD are SO Desperate to be considered journalists…”

Nobody at TF has ever claimed such a thing. Feel free to prove otherwise.

“But I cant see a basic code of ethics being employed here, things like ‘truth’ and ‘accuracy’ and ‘freedom from bias’ and terms not generally known here.”

Stating something you don’t agree with does not make it untruthful or inaccurate. Constantly making such accusations without a shred of evidence kinda clashes with your demand for ethical behavior. And freedom from bias has nothing all all to do with ethics, and only an idiot would expect such a thing from an opinion blog.

“Censoring from IP addresses now ??? Really ethical..”

Please back up your fantasies with proof.

James Burkhardt (profile) says:

Glad to hear im not an accountant because I'm unemployed

If drawing a salary/working for a firm is the requirement:

My Former Bookkeeping business was not real accounting
Im not an accountant despite my degree.
My Grandfather was not a WW2 Veteran (Like most, he was not in the military long enough for a pension.)
John Kerry is not a veteran (same reason)
My mother is not a licenced masseuse (she’s freelance)
Those non-profit lawyers and doctors without borders should probably get their stationary updated.
Ect.

My point? A salary or an established firm mean nothing.

Why

FM Hilton (profile) says:

What is news?

So they want to change the job description of a journalist-fine.

Then you change the description of the so-called news that so-called ‘journalists’ (who are paid to do it) report: the royal baby doings, and other heavy-duty trivia that passes for ‘news’ these days.

That’s called entertainment and frivolity by real journalists, and there aren’t that many of the serious ones left. Don’t even think of counting in PBS, because they’ve sold out like their brethren.

Yeah, being paid by a big corporation to report absolute garbage is being a real journalist, unlike those on the Internet that report all that bad stuff, like Edward Snowden’s thing, the NSA’s doings, and other really stupid stuff.

By that measure, Mike and crew at Techdirt night not be considered ‘real journalists’ either-they write a blog, not for a newspaper/magazine.

Or anyone who writes in the ethersphere-like HuffPost, Salon, and the Daily Beast. Guess the definition of journalism can’t be changed now, can it?

Flack (profile) says:

Flame bait

Easy to press people’s buttons here. Seems to be the standard for this paid ‘journalist.’

Apparently, anybody who can tap two keys in a row can call it a blog and therefore has earned the title ‘journalist’ or ‘press.’ Since that is everybody, I’d say those words no longer have any meaning. I doubt that is how the founding fathers thought of ‘Freedom of Press.’

Plenty of three word trolls to beat on Feinstein. Which commenter has actually proposed a better definition for ‘journalist’? 27 comments – not one with a better proposal! Just everyone piling on the “I don’t like her definition” stack – oh that helps the discussion.

So apparently you all qualify yourselves as press now…. head on down to Giant Stadium tomorrow and demand your press pass.

BTW: I’m a taxi-driver, I’ve never charged anybody though
I’m a lawyer, I don’t get paid, I just ruminate
I’m a football star, just the Pro’s don’t recognize it.
I must be a journalist, never made a nickel though – but if you send me something on Paypal – Nancy F will recognize me 🙂

Even if no editor, press, publication, on-line service, et cetera, has recognized/paid/published someone as a writer, investigator, or employee, you apparently are ready to recognize their self proclamation of journalist. If so what is the meaning of the word?

JF

Richard (profile) says:

Re: Flame bait

Ah – I see your problem – you are confusing the status of a journalist as a profession, with the respect that is afforded to its members, with the legal protections that are afforded to journalism.

Let me take your football analogy.

Anyone can play football – and when they do they are called a footballer and are protected by the laws of the game.

On those occasions when professional teams play against amateurs (as in the FA cup – I’m British so I’m talking proper football here) you do not see the professionals having a different set of rules from the amateurs.

Of course that does not mean that everyone who ever plays football is a professional – let alone a “star” – but it does make them – during the time when they are actually playing – a “footballer”.

Ninja (profile) says:

Re: Flame bait

A journalist is anyone who reports on facts. A renowned, famous journalist is a person who reports on facts that is well-known. Simple as that. Anybody can be a journalist. What can be questioned here and should be is the quality of the reporting. Does that journalist provide some critical thinking and deep analysis? Does he base his reporting on evidence?

Seems to me you are what you are criticizing.

DCX2 says:

Re: Flame bait

Blogs are the leaflet of the modern age. Leaflets are protected by freedom of the press – see my comment above, about Lovell v. Griffin.

Your problem is that you think we need a new definition. We don’t. Professional journalists are not the only ones who have freedom of the press – all Americans do, regardless of their profession, and all Americans deserve freedom of the press protections.

In contrast, there’s no “freedom of the taxi driver”. There’s no “freedom of the lawyer”. There’s no “freedom of the football player”.

But there is freedom of assembly, so you don’t need to be some licensed professional who draws a salary to hang out in groups. And there is freedom of religion, so you don’t need to be a licensed priest or rabbi to perform religious rites. And there is freedom of the press, so you don’t need to be a licensed professional in order to disseminate news or publish material.

Gwiz (profile) says:

Re: Flame bait

Which commenter has actually proposed a better definition for ‘journalist’? 27 comments – not one with a better proposal!

How about from the article you are commenting on:

If this bill is ever going to provide real protection for journalists, it will first have to recognize that journalism isn’t defined by the journalist’s employer, paycheck or association with a large media company. It’s an act and it can be performed by nearly anyone.

Anonymous Coward says:

‘If someone sends a tip to a journalist, it may not be immediately evident that it is newsworthy. It might be some time before it’s determined to be important, newsworthy and its source in need of protection. It’s a strange stipulation and one that seems to poke some compromising holes in the “shield.”‘

it may well also give the person(s) the time and the chance to stop the something, cover the something, move the something or prepare a statement to, in their minds, justify the something. whichever may be used, the opportunity to reveal ‘secret goings on’ would be removed. this is the main reason for adding in ridiculous sections to a bill so as to stop things like the Manning and Snowden episodes from getting out to the public. just a ‘legal way’ of allowing the government to carry on doing whatever it wants to do against it’s own citizens with no backlash

Anonymous Coward says:

Real Threat

Another real threat to America’s freedom is ignorance. Why do so many people not realize that, while government activities including widespread surveillance and secretive activities are hard to take given that we are supposed to be living in a free society, we have a real problem in this world and our survival as a society depends on some of what has been happening concerning these activities by the US government. If news agencies are so hell-bent on revealing the bad guys, why aren’t they exposing the real threats to Americans? This government has built in certain safeguards that really keeps checks on its systems. Why are so many ignorant people trying to break into that system that protects us from the real threats? Ignorance plays right into the hands of our real enemies. Don’t ever forget that.

Anonymous Coward says:

Re: Real Threat

Either this is a skilled troll post, well-designed to elicit knee-jerks from both sides, or some PR shill should be fired.

Except for the “while government activities including widespread surveillance and secretive activities are hard to take given that we are supposed to be living in a free society” every other statement could be interpreted to either have terrorists or the NSA as the “bad guys” or “threats”. Bravo?

slick8086 says:

Freedom of the Press

It seems to me that people like Diane Feinstein are try to interpret “freedom of the press” to mean “protection of the 4th estate” which is pretty much bullshit.

Freedom of the press means that EVERYONE is allowed to engage in mass communication. Everyone is allowed to have their own modern equivalent of the printing press, and the government can’t decide who is or is not “legitimate”.

John Fenderson (profile) says:

This is my problem with the idea of a "shield" law

While I am in favor of it in concept, the problem is that every discussion of how to implement it involves defining what a “journalist” is. This would be a terrible thing.

Journalists should not have any privileges that other citizens don’t have. Any shield law should apply to everyone equally: it should cover the act of journalism, not some made-up new class of elites called “journalists”.

If a shield law requires designating who is or is not a journalists, then I think it’s better to do without the shield law.

Anonymous Coward says:

Re: This is my problem with the idea of a "shield" law

Exactly. The bill of rights doesn’t carve out special rights for certain people over other people. That would be contrary to the ideology of the framers that “All people were created equal.” This is why the “Freedom of the Press” is not about “Freedom FOR ‘THE PRESS’ and not the public. The “who qualifies as a journalist” argument is in and of itself an unconstitutional one.

Uriel-238 (profile) says:

Amateur and professional

The internet is full of examples where amateurs blow away the pros.

That is a phenomenon I’ve been enjoying come to light. Amateur and Professional were often used to denote degree of expertise, but a friend of mine pointed out Amateur means for the love, and enthusiasts are not only often good at what they do but often create masterpieces that propel a craft forward.

I’ve since made a point to use the terms novice and expert to indicate skill, knowing a few highly-skilled amateurs in their respective choice pursuits.

TEUTONICX says:

Feinstein and the rest of the statist filth running the country are NOT senile. They have been chipping away at the Constitution and bill of rights since Lincolns time. Passing bills with language that to the untrained eye seems harmless or not connected at a the time , but later piggy backed on to justify new laws. These people ARE the enemy to our freedoms, stop framing it as a left/right issue because thas how this criminal cartel has stolen our god given rights and turned them into ” privileges ” which can later be taken away.

Anonymous Coward says:

it is about the value of the news reported

most journalist today have committed unethical behavior I don’t want opinion I want fact. they have failed the public the shift to reporting news based on polling to me is not news, the complain about messaging what happened to reporting the real deal. I don’t cared for the right wing slant or left wing slant I want the truth & we are not getting that just mag rags full of gossip & speculation. they all need to go back to school & relearn the ethics of pure journalism not based on who pays who but is reporting the truth which all have failed

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