Senator Schumer More Or Less Admits His 'Media Shield' Law Won't Protect Actual Journalists

from the a-total-failure dept

There had been a time when we thought that a "media shield" law was a good idea. Such a law would make it explicit that journalists don't have to give up their sources. However, over the many, many years of the debate concerning such a law, we noticed a troubling pattern, in that politicians kept wanting to narrowly limit who was a "journalist," often saying amateur journalists don't count. Senator Lindsey Graham even explicitly stated that he wasn't sure if bloggers deserved First Amendment protections. A completely out of touch Senator Dianne Feinstein insisted that "real journalists" draw salaries from big media companies. When Wikileaks first became a big deal, those working on the legislation actually worked hard to make sure that Wikileaks would not be covered.

There are all sorts of problems with all of that, starting with the most obvious: when the government gets to define who is and who is not a "journalist," you're raising serious First Amendment questions about how Congress can make no law interfering with a free press. By defining who is and who is not a journalist, it would appear that Congress is violating that basic concept.

Driving home this point last week, the main author of the Senate's shield law, Senator Chuck Schumer, himself has admitted that he's not sure if his own law would protect Glenn Greenwald:
Schumer discussed the bill's provisions and how, if it became law, it might affect journalist Glenn Greenwald, who reported on National Security Agency's secret surveillance based on documents leaked by Edward Snowden.

"It's probably not enough protections to (cover) him, but it's better than current law," Schumer said.
And that demonstrates how the law actually may be worse than current law. If it's carving out exceptions for the people doing real investigative reporting, breaking big stories that are having a very serious global impact on a variety of issues, then it's making the situation worse, not better.

Any law that attempts to define "journalist" is going to be a massive problem and likely unconstitutional. There is some view that we already have a journalism shield law in the First Amendment itself. Alternatively, if the government really wants to make an explicit safe harbor to protect journalist sources, it seems that a better approach would be to not define "journalists," but just make it clear that it protects anyone "engaged in journalism," whether professional or not. The whole reason why the Senate is so fearful of having the law too broad is that they're worried that, say, someone engaged in criminal activity will be able to get immunity from revealing accomplices by claiming to be a journalist. But, instead you could just look at whether the activities they were engaged in was gathering information for the sake of disclosing it, and see that it was a form of journalism. But, instead, it looks like Congress wants to push forward with a bad law that is almost certainly unconstitutional.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    joe, Mar 24th, 2014 @ 8:35pm

    It wouldn't be unconstitutional; it would leave untouched current 1Am protections.

     

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  2.  
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    Anonymous Coward, Mar 24th, 2014 @ 9:32pm

    Yes it would be unconstitutional.

    The moment you go to carving out who is or is not eligible for protection you have just made a law interfering with a free press by the very act of defining who is.

     

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  3.  
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    Pixelation, Mar 24th, 2014 @ 9:38pm

    This once again begs the question, why is the government trying to make a law regulating journalism?

     

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  4.  
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    CK20XX (profile), Mar 24th, 2014 @ 9:39pm

    Re:

    It's kinda like being an artist or a person of reason. You aren't one until someone else says you're one, and when you start proclaiming that you're one, that's just a big red flag saying you have no idea what it means to be one. We're talking about peaceful people whose work keeps society running smoothly, not people who demand attention to soothe their pride.

     

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  5.  
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    That One Guy (profile), Mar 24th, 2014 @ 9:43pm

    Journalism vs. PR

    "Journalism is printing what someone else does not want printed. Everything else is public relations."

    -George Orwell, British writer (1903-1950)

     

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  6.  
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    That One Guy (profile), Mar 24th, 2014 @ 9:46pm

    Re:

    I'd think it would be pretty obvious, it's so they can crack down on those that they don't consider 'journalists' without that pesky 'First amendment' getting in the way.

    At this point, I almost wish one of them would at least have the honesty to just come out and plainly say what they obviously believe, that of 'Journalists are those that do what we tell them to, and 'report' on what we want.'

     

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  7.  
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    Anonymous Coward, Mar 24th, 2014 @ 11:41pm

    Re: Re:

    What is being tried here, is keeping exposure of corruption and unsavory deeds by the government hidden. That's the sole purpose of this. By making a definition of who does or does not qualify, you start being able to separate those you don't want heard from those you control and do.

    Snowden beyond doubt qualifies as a whistle blower. Do you see the government jumping to actually protect him? Nope they've defined him otherwise so if they ever get their hands on him they can set another example.

    How many do you have to see leave the White House Press Corp to understand only those that bend to the will of only favorable reporting remain? If a journalist is not spouting beaming words of favoritism, they are not long to be in the Press Corp. How many question and answer sessions have you actually seen Obama in and out of those how many were not scripted with pre-approved questions to ask prior to holding the event?

    The Press Corp is already raising cane about lack of access when public signings of bills into law occur. They are getting fed publicity photos from the White House photographer but don't have the chance to actually do that themselves. They are also being fed spoonfuls of just what the administration wants leaked but nothing meaningful.

    There is nothing honest about these politicians in office with very few exceptions and I couldn't name one of them.

     

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  8.  
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    zip, Mar 24th, 2014 @ 11:42pm

    deja vu

    I had posted a link to the Huffington Post article a few days ago in the comments section of Glyn Moody's Green Scare: How Animal Rights Activists Are Being Branded 'Agro-Terrorists' to point out that one particular type of journalist - the animal rights' videographer - is under attack from many different directions.

    http://www.techdirt.com/articles/20140305/04333026436/green-scare-how-animal-rights-activ ists-are-being-branded-agro-terrorists39.shtml#c132

    It almost goes without saying that the one category of people I'm sure will never be accepted as "proper" journalists (and granted any of the protections it affords) are those who film police misconduct.

     

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  9.  
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    Ninja (profile), Mar 25th, 2014 @ 3:25am

    Definition of JOURNALIST
    1
    a : a person engaged in journalism; especially : a writer or editor for a news medium
    b : a writer who aims at a mass audience
    2
    : a person who keeps a journal


    Is it that hard to look at the dictionary? Nowhere it says the activity has to be professional or done for money.

     

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  10.  
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    Jake, Mar 25th, 2014 @ 7:02am

    You know, I'm not actually opposed to some kind of journalism license, or at least a clear and consistent definition of journalism.

    Suppose the US were to massively expand journalism shield laws and introduce a public interest defence to the Espionage Act, basically granting investigative reporters an exemption to various laws for the purpose of unearthing and reporting evidence of corruption, misconduct in office and other criminal activity in both the public and private sector; you know, everything that was generally understood to be okay under the principle of a free press until it became okay to treat the Constitution of the United States as a sort of vague guideline.

    Now, that would be really open to abuse if anyone could start a Wordpress account and make up some conspiracy theory to retroactively justify swiping a bunch of sensitive information. There would need to be some kind of accreditation process, and a process for taking disciplinary action against anyone who abuses their authority.

    How exactly we go about doing that I have no idea. Government regulation is certainly not ideal, but I'd ultimately choose that over letting the existing media organisations make the call because you can imagine what they'd decide the definition was. Maybe there needs to be an equivalent of a Bar Association for journalists? I'm open to suggestions on this.

     

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  11.  
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    nasch (profile), Mar 25th, 2014 @ 8:00am

    Re:

    Now, that would be really open to abuse if anyone could start a Wordpress account and make up some conspiracy theory to retroactively justify swiping a bunch of sensitive information.

    "Anyone" doesn't have access to sensitive information.

     

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  12.  
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    John Fenderson (profile), Mar 25th, 2014 @ 8:26am

    Re:

    "There would need to be some kind of accreditation process, and a process for taking disciplinary action against anyone who abuses their authority."

    I look at it a bit differently.

    A journalism license, or even any kind of governmental discrimination about who is or isn't a journalist is, in my opinion, incredibly dangerous and I am absolutely stunned that anyone takes it seriously. It is nothing more than a means of stripping most people (deemed "not journalists") of their first amendment rights.

    Journalism is an activity, not a title. Any shield laws must apply to everyone who is engaging in the activity of journalism regardless of whether their job is a "reporter".

    The legal threshold for protection shouldn't be whether or not someone is a journalist, it should be whether or not they were engaging in the act of journalism. There are a number of objective tests that could answer this question and that would prevent abuses by people who weren't actually doing journalism.

    "Now, that would be really open to abuse if anyone could start a Wordpress account and make up some conspiracy theory to retroactively justify swiping a bunch of sensitive information."

    This isn't the sort of thing that would be covered by a shield law. Nobody is saying that journalists would be able to suddenly be able to legally steal anything at all, sensitive information or not. That's more like a whistleblower protection thing.

    Shield laws are about journalists being able to protect their sources.

     

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  13.  
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    Jake, Mar 25th, 2014 @ 8:43am

    Re: Re:

    I actually like that better than my idea, except for one crucial detail. How, pray tell, do you propose to define the activity of journalism?

     

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  14.  
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    PRMan, Mar 25th, 2014 @ 8:55am

    Re: Re: Re:

    Webster's Dictionary 1776 edition

     

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  15.  
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    John Fenderson (profile), Mar 25th, 2014 @ 9:05am

    Re: Re: Re:

    Journalism is the gathering and analysis of facts with the intention of informing the public about them. A number of possible tests come immediately to mind, as anyone who has that intention will necessarily have to engage in other activities to that end.

    For instance -- do they publish? Do they have, or have a deal with, an outlet for their journalism? Are they keeping notes? Do they have drafts of the article they're writing? And so forth.

     

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  16.  
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    Coyne Tibbets (profile), Mar 25th, 2014 @ 9:56am

    Just want to be sure

    So let me get this straight: Bloggers aren't journalists because they don't get paid a pittance by a megolopoly; but those clowns at Fox News are?

    How low we've become. Used to be that the local journalist was the guy who scribbled a few paragraphs on the back of a wanted poster and stapled it to his door.

    Of course he could get shot if someone didn't like his news.

    Maybe that would be better criteria: A journalist is someone who can get shot for doing their job.

    But I suppose that leaves out Fox News, since only liberals hate them.

     

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  17.  
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    John Fenderson (profile), Mar 25th, 2014 @ 10:24am

    Re: Just want to be sure

    "But I suppose that leaves out Fox News, since only liberals hate them"

    I know a lot of conservatives who hate Fox News as well.

     

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  18.  
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    Mason Wheeler (profile), Mar 25th, 2014 @ 11:09am

    Alternatively, if the government really wants to make an explicit safe harbor to protect journalist sources, it seems that a better approach would be to not define "journalists," but just make it clear that it protects anyone "engaged in journalism," whether professional or not.

    I really don't see how this makes any difference; it just moves the problem around a little. Now the question is, how do you define "engaged in journalism"? And we're back to square 1.

     

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  19.  
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    fgoodwin (profile), Mar 25th, 2014 @ 12:53pm

    Journalist-source "privilege"?

    There is attorney-client privilege and there is doctor-patient privilege. What the two have in common is that, via licensure, the government determines who is a doctor and who is a lawyer.

    Quacks and pretend lawyers aren't protected by the laws that protect real doctors and lawyers.

    There is no journalist-source privilege that is generally recognized (some states might have it but not all and not the federal government).

    If "real" journalists want a similar law that grants them privilege with respect to their sources, maybe they need to let the government license them.

    If that is too intrusive, then skip the protection of the law, and suffer jail time for not revealing your sources.

     

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  20.  
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    fgoodwin (profile), Mar 25th, 2014 @ 1:01pm

    Re: Re:

    John Henderson wrote:
    "It is nothing more than a means of stripping most people (deemed "not journalists") of their first amendment rights."

    I don't think so. No one is being denied their right to publish anything they want. It's just that non-licensed journalists would not be able to shield their sources. Where does the First Amendment say anything about that?

    I view this as no different than doctor-patient privilege laws. Real doctors don't have to disclose the content of their patient communications. Quacks, on the other hand, are not provided that same protection.

     

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  21.  
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    John Fenderson (profile), Mar 25th, 2014 @ 1:13pm

    Re: Re: Re:

    My statement was hyperbolic, but I do think there's a clear 1st amendment implication here. A shield law that requires journalists to be certified, licensed, or officially recognized in some similar way means that the ability of actual journalists to report on many types of stories would be essentially eliminated.

    The reason is this: the journalists that will get such approval will be the establishment journalists who are attached to establishment news companies. The very people who have pretty much given up the practice of journalism. In the meantime, sources will be less willing to talk with the people are are increasingly engaging in the actual act of journalism -- bloggers, small time news outfits, and even independent citizens putting together a scathing facebook post.

    In this way, it helps to silence the actual practice of journalism and will result in the public being less informed of the thing they really need to know.

    "I view this as no different than doctor-patient privilege laws. Real doctors don't have to disclose the content of their patient communications"

    I understand, although I would say that I think the existing laws to protect medical privacy are simply terrible, and to model anything after them is a serious mistake. Medical privacy should be enshrined in law regardless of whether you're dealing with a licensed doctor or not.

    Also, there is a real, solid, and compelling public interest case in requiring doctors to be licensed, which is why we put up with it even with its downsides.

    There is no such case to be made for journalists, so no reason to take on the downsides.

     

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  22.  
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    John Fenderson (profile), Mar 25th, 2014 @ 1:15pm

    Re: Journalist-source "privilege"?

    I agree. A shield law that requires the government to decide who is or is not a journalist is more harmful than helpful and should not exist.

     

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  23.  
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    John Fenderson (profile), Mar 25th, 2014 @ 1:17pm

    Re:

    I disagree. We're not back to square 1 at all. We're at square 2.

    The difference between the two approaches is that one is defined by action, the other is defined by association. If we have to make a distinction between journalist and not-journalist (and, to be clear, I'm against any law that requires such a distinction to be made), it is better to make the distinction based of what the person does rather than who the person's employer is.

     

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  24.  
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    Mason Wheeler (profile), Mar 25th, 2014 @ 2:42pm

    Re: Re:

    Not really. Bear in mind that we're dealing with people who think things were so much simpler back in the good old days when freedom of the press was only meaningful at all to those few people who could afford one. So it wouldn't be at all difficult to define "engaged in journalism" as doing journalist-style work in the employ of a reputable (read: rich campaign donor) publisher. And then we're back to square 1.

     

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  25.  
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    nasch (profile), Mar 25th, 2014 @ 3:09pm

    Re: Re: Re:

    All you're saying is that it's possible to have a bad definition of journalism, which is of course true. But the problem is it's impossible to have a good definition of journalist in the context of a shield law, while it is possible to have a good definition of journalism. So we should try for a law that defines journalism well, rather than one that cannot hope to define journalist well.

     

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  26.  
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    Jake, Mar 25th, 2014 @ 5:13pm

    Re: Re: Journalist-source "privilege"?

    Someone has to bloody well decide, though. And if not the government, who else? At least if you don't like their definition you can vote for someone else, however meaningless the choice may be at times.

    Right now it seems like we have the worst of both worlds. Journalists with a conscience are persecuted as traitors and criminals if they try and report on major abuses of government power, but when it comes to factual accuracy they're subject to less regulatory oversight than the adverts between the articles.

     

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  27.  
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    John Fenderson (profile), Mar 26th, 2014 @ 7:00am

    Re: Re: Re: Journalist-source "privilege"?

    "Someone has to bloody well decide, though."

    Why?

     

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  28.  
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    John Fenderson (profile), Mar 26th, 2014 @ 9:20am

    Re: Re: Re: Re:

    Actually, what I'm saying (and it got a little lose amidst my sidetracking) is that an official determination of who is or is not a journalist, even if the definition is perfect, is highly undesirable.

    As soon as the government starts making such determinations, it has a lot more leverage over journalism. It can demand that certain things not be covered, or be covered, or be covered in a particular way, under threat of stripping them of their "journalist" designation if they don't comply.

    Also, it will be used by the major news companies to raise the bar of entry and put roadblocks in front of smaller outfits and individuals (who might be actually doing real journalism).

     

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  29.  
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    Jake, Mar 26th, 2014 @ 2:53pm

    Re: Re: Re: Re: Journalist-source "privilege"?

    Because words should mean something. If society is going to attach additional rights and privileges -and duties for that matter- to the title of 'journalist', then the act of journalism needs a definition that isn't "whatever the hell someone who feels like calling themselves a journalist wants it to mean". And the Webster's definition won't cut it either, not anymore; that's so broad it could apply to a non-trivial percentage of the entire human race.

    And yes, I know I'm arguing for a possibly government-operated selection and regulation process for journalists. Google the words "British tabloid newspaper" if you want to know why, because Armok knows it couldn't make things any worse in my neck of the woods!

     

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  30.  
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    Anonymous Coward, Mar 31st, 2014 @ 12:55am

    Re: Journalism vs. PR

    This is not well known, but George Orwell was actually a pen name. The author's real name was Eric Blair. This info taken from my 1984 edition of the novel 1984.

     

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  31.  
    identicon
    Anonymous Coward, Mar 31st, 2014 @ 1:12am

    Re: Re: Re: Re: Re: Journalist-source "privilege"?

    You really ought to familiarize yourself with the "work" of the BBC, especially over the last year or so. I highly doubt you'd be advocating for government-operated selection of journalists then.

     

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