Journalists who clamored for a federal shield law to help them fight off legal battles to protect sources have reason to cheer. Last night, the Senate Judiciary Committee approved a bill that would shield reporters from people like Eric Holder and the Department of Justice — but that depends on the definition of the word “journalist.” Dianne Feinstein wants that to be a rather exclusive club:
Journalists and bloggers who report news to the public will be protected from being forced to testify about their work under a media shield bill passed by a Senate committee Thursday.
But the new legal protections will not extend to the controversial online website Wikileaks and others whose principal work involves disclosing “primary-source documents … without authorization.” …
Sen. Dianne Feinstein (D-Calif.) insisted on limiting the legal protection to “real reporters” and not, she said, a 17-year-old with his own website.
“I can’t support it if everyone who has a blog has a special privilege … or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I’m not going to go there,” she said.
Feinstein introduced an amendment that defines a “covered journalist” as someone who gathers and reports news for “an entity or service that disseminates news and information.” The definition includes freelancers, part-timers and student journalists, and it permits a judge to go further and extend the protections to any “legitimate news-gathering activities.”
This at least goes farther than the Senate first indicated about classifying journalists, which initially required employment by a media outlet. However, this still leaves the definition of who gets the shield in the hands of the government that wants to get the source information, and that’s not just a risk for bloggers, free-lancers, and part-timers. Feinstein et al left a rather large loophole in that regard:
But the bill also makes it clear that the legal protection is not absolute. Federal officials still may “compel disclosure” from a journalist who has information that could stop or prevent crimes such as murder, kidnapping or child abduction or prevent “acts of terrorism” or significant harm to national security.
“Harm to national security” is a usefully ambiguous term. For instance, even though this bill is in part prompted by the DoJ’s pursuit of James Rosen — listing him as a co-conspirator to espionage in court documents in order to spy on him — the predicate for that abuse would still stand. If the DoJ made a representation to the court after this shield law passes that is similar to what Holder approved on Rosen, a court would still be able to approve the surveillance so that the DoJ could discover Rosen’s sources. The other hypotheticals in the exception list are all red herrings; the ambiguous national-security exception is what the DoJ and other government agencies really want.
And, of course, it still means that the government gets to define journalists in as narrow a sense as they like for the purposes of applying this shield. Reporters for newspapers and broadcast outlets would certainly be covered, but that certainty ebbs the farther one goes from that core. What about writers at online sites like Hot Air and Huffington Post? Probably covered. RedState and Firedoglake? Well … are they journalists or activists? If the government gets to define it, then probably the latter — and that’s going to be more true for less-commercial online sites. Will writers at those sites feel more or less free to run real reporting based on inside sources? Better yet, will the inside sources want to talk with writers whose shield is very questionable, or to reporters whose shield will be more substantial?
This is basically rent-seeking by the big players in the media market, a sham by the Senate, and an affront to the First Amendment. Any shield law should concern itself with process and not identification. The founders did not include the First Amendment in order to allow the government to decide who gets its protections. If the shield is an extension of the First Amendment, then it applies to everyone involved in journalistic efforts, or no one at all.