Rep. Grayson Attempts To Build A Journalist Shield Law Out Of A One-Line Amendment, But Will It Do Any Good?

Free Speech

from the there-are-journalists-the-government-likes,-and-then-there's-everyone-else dept

It looks like the government might be forced to hold another uncomfortable discussion about who is/isn’t a journalist. Among the many amendments to the DOJ’s appropriation bill was one from Rep. Alan Grayson, which forbids the use of DOJ funding to force journalists to turn over sources.

The description of the amendment is only one sentence long, but it’s provoking a much larger discussion.

None of the funds made available by this Act may be used to compel a person to testify about information or sources that the person states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential.

“…as a journalist or reporter…” — What does that mean?

In the non-specifics of a short amendment, it could mean anything. In a practical sense, its definition is likely far narrower. Legislators have periodically mounted attempts at a “shield” law for journalists. Unfortunately, their efforts have either been beaten back by administrations that love prosecuting leakers or that were sabotaged by their own far-too-limited ideas of who might qualify for the elusive “journalist” designation.

This — despite its open-endedness — will probably end up being no better than previous efforts. On one hand, it could be argued that the term is almost all-inclusive. Here’s Joel Kurtzberg — who defended James Risen in his fight against the DOJ — on what he sees is the problem with Grayson’s amendment.

“If this became law, it would provide significantly needed protection to journalists who need to be able to keep their promises to confidential sources in order to do their jobs,” he says. “The difficulty with it, however, is that it appears to provide protection for anyone who claims in motion papers to have obtained confidential information as a journalist.”

Kurtzberg says if the amendment passes the Senate and becomes law anyone who claims to be a journalist could be off the hook from testifying.

This seems like a rather odd argument to be coming from someone’s whose client would have definitely benefitted from some sort of journalistic shield law. It’s almost as though he’s of the same mindset as some of our representatives: “real” journalists write for well-known papers and draw salaries. No one outside of this narrow definition should be shielded from the government’s vengeance, no matter how much journalism they actually perform. (It’s an act, not a position.)

A legal rep (Barry Pollack) for an entity frequently considered to be “NOT JOURNALISM” by legislators (Wikileaks) sees this wording as implying the opposite.

“I wouldn’t say it offers no real-world protection,” he says. “It offers limited and imperfect protection. It would constrain what the Department of Justice could do. Anyone has a better chance if the opponent has one arm tied behind its back. But it is the referee, not the opponent, who makes the decision.”

As he sees it, the courts could still compel testimony because there is no federal law offering explicit protections for journalists. The DOJ may not be able to spend money prosecuting journalists, but the courts would not be compelled to recognize a protection that officially doesn’t exist.

“Unless the law changes, judges may continue to rule against journalists, even without the Department of Justice openly advocating for that result,” Pollack says.

And if it’s not the judges, it may be the administration itself, which has never been kind to whistleblowers or journalists. The usual mouthpiece for prosecutions is the Department of Justice, so this amendment — if it sticks — will make for some interesting courtroom maneuvers in the future.

Grayson himself doesn’t see any real issues with the amendment as worded. According to him, the fact that lying to the government is a crime will be a sufficient deterrent to potential abuse.

Grayson points to former House Speaker Dennis Hastert’s recent indictment for allegedly lying to the FBI when asked if non-journalists could misuse the provision.

“If you go to court and lie about anything, or lie to federal agents … then that itself is a crime and will lead to you being in prison,” he says.

The potential for this sort of abuse isn’t what worries journalists about shield laws. It’s the abuse coming from the top down. Grayson’s amendment means well, but his feeling that the government — via the courts — will interpret this open-ended “reporter or journalist” designation “reasonably and favorably” puts a bit too much faith in a system that has shown a preference for doing exactly the opposite.

Filed Under: alan grayson, journalism, protection, shield law