A Media Shield Law That Wouldn't Protect Glenn Greenwald Is Not A Media Shield Law; It's A Joke

Free Speech

from the well-of-course dept

Back in March, we pointed out that Senator Chuck Schumer had more or less admitted that his attempt at a media shield law (protecting sources) likely wouldn’t protect Glenn Greenwald. While Schumer argued that it was still “better than current law,” we’re still skeptical about Congress’ efforts here, given that it seems to involve them determining who is, and who is not, a journalist. That’s problematic on all sorts of levels.

Carey Shenkman has decided to dig into the Free Flow of Information Act, and has found that it’s basically useless. It doesn’t protect journalists doing serious investigative work into the government, and certainly wouldn’t protect their sources in cases like Chelsea Manning or Ed Snowden (even though those two were outed via other means, including, in Snowden’s case, by choice).

The FFIA does not include those “whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.” This is colloquially called the WikiLeaks clause. But The Intercept is also in trouble owing to what its new editor-in-chief, John Cook, described in mid-April as a “commitment to continue the work of reporting on, publishing, and explicating” Snowden’s releases.

Certainly, Snowden came forward with his identity voluntarily and Manning was betrayed by a confidant, but this is no justification for crafting a law to exclude them. There will be more like them. The market for fearless government accountability publishing is small, and these sources are prime targets for subpoenas. Right now the traditional media still strongly support this bill, under the rationale that expecting perfection out of Washington is unrealistic. Schumer argued at a conference in March that the “perfect shouldn’t be the enemy of the good.” But in this case, the bad is the enemy of the good. Protecting Greenwald, Julian Assange and their sources is not perfection. It is a baseline.

Even worse, the bill has a clause telling judges that it only covers “legitimate newsgathering” which opens up the idea that there’s such a thing as “illegitimate” newsgathering. And, of course, that makes the bill worse than useless, because it leaves open a massive loophole. Just declare any kind of newsgathering you don’t like as “illegitimate,” and there goes any source protections. The end result is basically an attack on the First Amendment’s protections for freedom of the press… all packaged up in a bill that is supposed to be about protecting those freedoms.

Filed Under: chuck schumer, ffia, free flow of information act, free speech, glenn greenwald, media shield