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.