When the Justice Department admitted to gathering months of records from more than 20 Associated Press telephone lines, it startled average Americans and the established media alike. It was a dangerous overreach by the DOJ, whose powers are strictly limited under its own guidelines for issuing subpoenas to the news media for testimony and evidence.
Congress responded to this gross executive overreach by seeking to codify legal protections for journalists and their sources, but despite the best of intentions, they’re missing the mark in their attempt to create a tight definition of a “journalist.”
The proposed law was weakened in a compromise between Sens. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., that would limit these protections to employees of established media organizations. They adhered to an incomplete definition of journalism that excludes the independent reporters, freelancers and citizen journalists whose essential contributions supplements the work of the traditional media. While it’s no surprise that major media conglomerates — whose employees make up the majority of those who would be protected — are among the most vocal supporters of the bill, it falls short of protecting up-and-coming freelancers, bloggers and citizen journalists.
By trying to protect a careerist class of journalists, the Senate bill leaves unprotected journalists at the mercy of federal judges, who may be empowered to determine who is and isn’t protected on a case-by-case basis.
Trying to define “journalism” as we would “accounting” or some other profession — by salary, education and place of employment — is futile, because journalism spans a broader spectrum of pursuits than politicians may care to recognize. Instead of exacerbating this uncertainty, Congress should turn its focus to clearly defining the actions that constitute journalism and extend protections to anyone who engages in these actions while they are actively engaged.
Journalistic activities are much more easily and equitably defined than the journalistic profession as a whole. A law protecting people who engage in these activities with clear journalistic intent would sidestep the impossible task of comprehensively defining exactly what a “journalist” is.
Nondiscriminatory shield laws are necessary because journalism isn’t a rigid hierarchy but rather a branching web of information gatherers at all levels of society who work together to inform the public. A New York Times reporter may not view a citizen blogging and tweeting about the same stories he covers as a colleague, but the two work together to reach audiences and cover angles of the story that the other cannot. And both require the same legal protections if they are to effectively report and inform the public.
Under a law modeled in this manner, a newspaper reporter would certainly receive shield law protections, but so would the community blogger who follows the same beat, or a citizen journalist who records a speech on his camera phone and posts it to YouTube to inform the community. Each of these people would be protected while — and only while — they are engaged in the activities of journalism. The law would not discriminate between professional, amateur, salaried or part-time journalists.
The Founding Fathers explicitly protected the press in the First Amendment because it is such a critical service to a free society, but they were smart enough not to define what “the press” was. Journalism is society’s greatest safeguard against government abuse, and Congress should seek to protect it in all its forms, and not define it to fit their own devices.
Jason Stverak is president of the Franklin Center for Government and Public Integrity and publisher of Watchdog.org.