Media shield law proposes to protect some reporting … sometimes

posted at 5:21 pm on May 17, 2013 by Ed Morrissey

In the aftermath of the exposure of the Department of Justice’s raid on Associated Press phone records, the White House has tried to mollify outraged journalists by reversing course and backing a media shield law that has floated around for years.  This doesn’t actually explain how the Obama administration would abide by such a law, since it violated existing law in its zeal to punish the AP for scooping its PR efforts, and at least one journalist organization has already scoffed at the President’s sudden interest in shield law.

But there are more fundamental issues with the shield law being belatedly embraced by The Administration Most Likely To Violate It, writes Bloomberg columnist Stephen Carter.  Not only is it full of ambiguities and holes in precisely the same areas that the Obama administration violated existing law, its protections only extend to the larger players in the media market:

But this bill, much like the guidelines on which the Justice Department was supposed to rely before seizing telephone records of Associated Press reporters, is chock-full of exceptions — particularly for national security cases.

The statute, in any case, says only that the government can’t subpoena documents or testimony from journalists until it has exhausted other reasonable means of getting the same information. In a saner world, this would be a universal standard — but it probably wouldn’t be a significant change for the practice of journalism. Even in the absence of a shield law, most prosecutors are too savvy to go after journalists. The price can be too high. If a prosecutor does decide to try to pry a source out of a reporter, chances are he has indeed run out of other ideas.

It’s worth pointing out while the bill would extend those protections to state and local jurisdictions, these restrictions exist already in federal statute regarding the federal government — in fact, in the statute that Justice trampled in raiding the AP’s phone records.  Whether this strengthens protections for journalists in dealing with prosecutors at other levels of government certainly seems questionable for now, given the lack of protection the existing statute provided the AP.

That’s not all, though.  Instead of defining what should be covered, Carter points out, the shield bill defines who gets covered — and that’s bad news for free-lancers and citizen journalists:

The protection applies only to a “covered person,” and a covered person is defined with disturbing narrowness:

“A person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.” …

The main problem is that the statute, by protecting only those who commit journalism professionally, would drive a fully informed and rational leaker to go to a reporter for a mainstream media organization rather than to a blogger or a law student. To which you might say: So what? Maybe it’s better that the leak be published in the New York Times or broadcast on CBS.

Maybe — but do we really want the government, as a matter of policy, making judgments about where leakers ought to be encouraged to leak? By raising the costs on others who would cover the news, the shield law in effect subsidizes the working press. It isn’t at all clear why this is a proper government function.

The short answer is it isn’t.  These shield laws are supposed to be based on putting teeth into the First Amendment right to free speech.  Note, as Carter does, that the First Amendment doesn’t just apply to the full-time professional media, but to all Americans.  When acting as a journalist, anyone should have recourse to these protections, especially under the equal-protection clause of the 14th Amendment.

Instead, this looks like a crony-capitalist sop to large media outlets:

And, certainly, there is no justification for the limit of coverage to one who engaged in these activities “for a substantial portion of the person’s livelihood or for substantial financial gain.” One would think that people who give information away free would receive, if anything, greater solicitude from government. The provision limiting protection to those who make money from disseminating information should be deleted entirely.

I have heard it said that a more broadly worded statute would never pass, not least because media companies might yank their support. Let’s hope this isn’t true, because if it is, it’s hardly an argument in favor of the Free Flow of Information Act. It would instead be evidence that the statute itself is an elaborate form of rent-seeking in the guise of protecting sources.

Or perhaps a payoff from an administration desperate to regain a lost advantage with broadcasters and other large media corporations?

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Media shield law proposes to protect some reporting … sometimes

If it saves one reporter….

Lily on May 17, 2013 at 5:26 PM

How this thug won in 2012

All of these IRS actions took place in the years leading up to the 2012 election. They constitute the use of governmental power to intrude on the privacy and shackle the political freedom of American citizens. The purpose, obviously, was to overwhelm and intimidate—to kill the opposition, question by question and audit by audit.

The media is already protected.

Suffocate, most of you fools who enabled this narcissistic thuggish creep. YOU are all derelict. Suffocate from consuming his shit. May he destroy you and yours, and all who brung/kept him.

YOU made America the shame of the world, with zero moral authority and decency left. Combust, most all of you. I’d love to watch you.

Schadenfreude on May 17, 2013 at 5:26 PM

May 1945: Hitler proposes the “Jew Protection Act” which would outlaw Jews being killed by German soldiers.

Bishop on May 17, 2013 at 5:27 PM

100 reporters were monitored, illegally.

The fools at the AP brung this politbureau, the derelict swine of the world. They thought they were eating Beluga caviar and it was Obama shit all along. May they stink, eternally.

Schadenfreude on May 17, 2013 at 5:28 PM

Peggy, the scumhag, is finally sober.

Schadenfreude on May 17, 2013 at 5:29 PM

The White House is reported to be shellshocked at public reaction to the scandal. But why? Were they so high-handed, so essentially ignorant, that they didn’t understand what it would mean to the American people when their IRS—the revenue-collecting arm of the U.S. government—is revealed as a low, ugly and bullying tool of the reigning powers? If they didn’t know how Americans would react to that, what did they know? I mean beyond Harvey Weinstein’s cellphone number.

And why—in the matters of the Associated Press and Benghazi too—does no one in this administration ever take responsibility? Attorney General Eric Holder doesn’t know what happened, exactly who did what. The president speaks in the passive voice. He attempts to act out indignation, but he always seems indignant at only one thing: that he’s being questioned at all. That he has to address this. That fate put it on his plate.

Peggy, the scumhag who was for this prince of all charlatanich princes of the world.

Schadenfreude on May 17, 2013 at 5:32 PM

Media shield law proposes to protect some reporting … sometimes

If it saves one reporterpolitician’s career….

Lily on May 17, 2013 at 5:26 PM

Edited for accuracy.

Lily on May 17, 2013 at 5:32 PM

The congress should NOT fund Obama’care’ until an independent councel is appointed, one not at all connected to Obama and the Valerie Jarrett crookery.

These are thugs of the first rate, beyone AlCapone types.

Schadenfreude on May 17, 2013 at 5:32 PM

Obama and other Democrats are precisely the reason the shield law exists.

Liam on May 17, 2013 at 5:33 PM

This ” shield” forces leakers and whistleblowers to go to only those approved by Hussein and his thugs,
which means that Hussein and his thugs will always know who is leaking and then they can plug/scrub/eliminate that leaker ,
and…and…the leak will never be published .

burrata on May 17, 2013 at 5:33 PM

counsel

Schadenfreude on May 17, 2013 at 5:33 PM

Or perhaps a payoff from an administration desperate to regain a lost advantage with broadcasters and other large media corporations?

May they all get fluked, badly, painfully, into oblivion.

They let this travesty get away with all things, until now, and would give anything for the public to go back to shopping/American Idol, etc.

Obama did for Nixon, the TEA party, and against Obama’care’ what no one else could have dreamed of.

Schadenfreude on May 17, 2013 at 5:36 PM

What’s up with the gray hair all of a sudden?

antifederalist on May 17, 2013 at 5:36 PM

What’s up with the gray hair all of a sudden?

antifederalist on May 17, 2013 at 5:36 PM

If you had Big Mooch whispering in your ear after climbing into bed, “You better not f**k this up, you scrawny wuss, I like my free lobster” you would have a few gray hairs too.

Bishop on May 17, 2013 at 5:39 PM

‘This president believes in an unfettered press.’

- Clown Carney

I do not think that word means what you think it does.

Resist We Much on May 17, 2013 at 5:42 PM

Bishop on May 17, 2013 at 5:39 PM

Can you hear her now “Barry, this is all whitey’s fault. I hate America again”.

Schadenfreude on May 17, 2013 at 5:43 PM

The laws of America need a serious RESET button.

And apply these two laws to the IRS:
“Thou shalt not steal” and
“Thou shalt not bear false witness against thy neighbor”

and throw out the 80,000 page tax code.

kirkill on May 17, 2013 at 5:43 PM

When Barack and Michelle went to Rio I said “the clowns arrived at the carnival”.

The clowns are in DC.

Schadenfreude on May 17, 2013 at 5:44 PM

So will the Mooch be proud of her country today ?

burrata on May 17, 2013 at 5:44 PM

Too late

Schadenfreude on May 17, 2013 at 5:47 PM

Barry and the Crew don’t think government is big enough. These are minor little scandals compared to what the troll party has in mind for us. I feel it in my bones that America is starting to get restless, sorta like when Jimmy sat in the WH with his sweater on mumbling something about malaise, or mayonnaise, or something.

Limerick on May 17, 2013 at 5:48 PM

I guess O’keefe really peesed off the Obama Apparatchiks with the ACORN thing.

HopeHeFails on May 17, 2013 at 5:51 PM

What’s up with the gray hair all of a sudden?

antifederalist on May 17, 2013 at 5:36 PM

The dominant primate often develops silver fur and the respect that goes with it.

However, in this case, like everything else he does he lied cheated and stole the dye and was shameless enough to think he earned respect.

Either that of it’s wash from the marine’s glove during yesterday’s rain even during his lie-fest to the media.

acyl72 on May 17, 2013 at 5:51 PM

Any truth to the rumor that hack David Gregory has climbed a billboard and refuses to come down until his hero Ogabe is given a pass?

viking01 on May 17, 2013 at 5:51 PM

Absolutely pathetic excuse for a human being. He alone should doom the democrat party for an eternity but course it won’t.

jawkneemusic on May 17, 2013 at 5:57 PM

Unfriggin believable… this is how the NYT homepage looks like, one single title re: the IRS scandal…

jimver on May 17, 2013 at 5:59 PM

New law? HOW ABOUT OBEY THE “OLD” LAW?

GarandFan on May 17, 2013 at 6:02 PM

What’s up with the gray hair all of a sudden?

antifederalist on May 17, 2013 at 5:36 PM

L’Oreal Silver highlights to get sympathy from the public :)… On a more serious note, I wouldn’t put it beyond him…in the corporate world, young managers do that too, for different purposes though, to look more seasoned and project experience and wisdom :)

jimver on May 17, 2013 at 6:02 PM

What’s up with the gray hair all of a sudden?

antifederalist on May 17, 2013 at 5:36 PM

If you had Big Mooch whispering in your ear after climbing into bed, “You better not f**k this up, you scrawny wuss, I like my free lobster” you would have a few gray hairs too.

Bishop on May 17, 2013 at 5:39 PM

Honestly if I had to face that every day, and Valerie, and the Mother in Law too, I’d golf every chance I had as he does.

slickwillie2001 on May 17, 2013 at 6:11 PM

L’Oreal Silver highlights to get sympathy from the public :)… On a more serious note, I wouldn’t put it beyond him…in the corporate world, young managers do that too, for different purposes though, to look more seasoned and project experience and wisdom :)

jimver on May 17, 2013 at 6:02 PM

Neal?

slickwillie2001 on May 17, 2013 at 6:12 PM

They are trying to limit and redefine the first amendment under the guise of making things fair. The big media will agree with whatever is written up in this act. They don’t think of people like Rush and Sean as real journalists or even Fox as a real news organization. They want to shape and remake the news to fit their con game.

Kissmygrits on May 17, 2013 at 6:16 PM

What’s up with the gray hair all of a sudden?

antifederalist on May 17, 2013 at 5:36 PM

As per islamic hadith , he went without make-up to meet his flotilla brother Mr Cardigan from Turkey, and the jihady relatives he brought with him . He’s still in that mode, will snap out of it when it’s time to party and golf and dance and dine on our dime .

burrata on May 17, 2013 at 6:20 PM

I’d like to suggest a “Citizen Shield Law” to protect me & you, the average citizen, from government overreach and abuse.

Of course they’d ignore it just like they already do to the constitution.

Oxymoron on May 17, 2013 at 6:22 PM

This is insurance for all the Obamamites that are taking jobs in media to protect them from possible retaliation from a future, conservative, administration.
Got to keep that revolving door well greased.

Another Drew on May 17, 2013 at 6:24 PM

I agree with the GRAY HAIR comments. Maybe he’s a quart low.

Ufdaubet on May 17, 2013 at 6:26 PM

I’d like to suggest a “Citizen Shield Law” to protect me & you, the average citizen, from government overreach and abuse.

We call that the 2nd-Amendment.

Another Drew on May 17, 2013 at 6:31 PM

Media shield law proposes to protect some reporting … sometimes

Didn’t read the article.

Let me guess. It proposes to protect any reporting sufficiently left of center.

ElectricPhase on May 17, 2013 at 6:35 PM

…writes Bloomberg columnist…

Coming from the people who were caught spying on security traders with their terminals …sigh. Well, if it takes their own ox being gored to generate a little outrage I’ll take it, but I don’t really expect it on any other issue.

Fenris on May 17, 2013 at 6:37 PM

The Political Left… always trying to turn back the clock on technology because it is just outrunning their ideology.

ajacksonian on May 17, 2013 at 6:42 PM

Sorry, but I’ve never thought much of “shield laws”. Why should reporters get any special dispensation from revealing their connection to criminal activity? Makes your “equal protection” argument sound sort of tinny.

–If you haven’t done anything illegal then the government doesn’t have any legitimate leverage to get the information.
–If you are connected to illegal activity (revealing classified information, interviewing a wanted felon, etc.) then you run the risk of being considered an accessory. If you’re in that position, the government has the legal authority to charge you as such (and, subsequently, arrest you).
*In either case, you have the right to assert your 5th Amendment rights.
*In either case, the government is required to afford you your 4th Amendment rights.
*In either case, you are acting on your 1st Amendment rights.
I really don’t see where there’s a need for a “shield law” at all.

In the case of the AP phone records, someone needs to go to jail for violation of those rights. It’s that simple. Searching for a “leaker” is NOT a legitimate government police function (unless it involves classified information), and the judge who issued the subpoena on that basis should be pitched overboard.

We really don’t need more laws.

GWB on May 18, 2013 at 11:03 AM