By Eric Boehm | Watchdog.org
The most recent congressional threat to the free press in the United States comes from California Democrat U.S. Sen. Dianne Feinstein.
In a proposed amendment to a media shield law being considered by Congress, Feinstein writes that only paid journalists should be given protections from prosecution for what they say or write. The language in her proposal is raising concerns from First Amendment advocates because it seems to leave out bloggers and other nontraditional forms of journalism that have proliferated in recent years thanks to the Internet.
“It rubs me the wrong way that the government thinks it should be in the business of determining who should be considered a journalist,” said Ken Bunting, executive director of the National Freedom of Information Coalition at the Missouri School of Journalism.
But on the other hand, Bunting said, there is a great need for federal shield law in light of recent attempts by the U.S. Justice Department to force journalists to give up information about confidential sources.
The difficulty with writing any such law — this is the third time Congress has attempted to craft a federal shield law — is that any such law would have to set standards for who counts as a journalist or what qualifies as an “act of journalism.”
There are shield laws on the books in 40 states, but they do not apply in federal court. The First Amendment of the U.S Constitution promises that the right to a free press “shall not be infringed.”
The proposed federal shield law would protect journalists from having to comply with subpoenas or court orders forcing them to reveal sources and other confidential information. The important question, of course, is how to determine that the shield law applies to one person and not another.
In other words, how do you determine someone is a journalist?
Feinstein, chairwoman of the powerful Senate Intelligence Committee (and a staunch defender of the government’s right to spy on anyone at any time), does not want to see a shield law that would protect employees of WikiLeaks and other leak-driven news organizations.
An amendment offered by Feinstein would extend shield-law protections to those who work as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information,” though students working for news outlets would similarly be covered. The definition seems to leave out the new tide of bloggers and citizen journalists who thrive on the Internet.
Calls and emails to Feinstein’s office were not returned on Monday.
In states with shield laws, the difference between being protected by them or not can be great.
Take the case of Crystal Cox, for example. A self-described “investigative blogger” from Seattle, Cox broke a story about financial malpractice at a major investment bank, prompting a lawsuit for defamation.
Cox argued in court that she should be covered by Oregon’s shield laws, but a judge found she was not protected because she was not part of the traditional media.
As a result, she was ordered to pay $2.5 million to the investment firm.
The laws in many states are lagging behind the reality of journalism today, where anyone with a camera, smart phone or a computer can break an important story.
“The distinction between who gets paid to do journalism and who doesn’t is going to be come essentially meaningless as we go forward with this technological revolution,” said Kelly McBride, a senior faculty member at the Poynter Institute, a journalism school based in St. Petersburg, Fla.
McBride, the recent author of a book on journalism ethics in the Internet age, said shield laws are meant to ensure a vibrant marketplace of ideas where all voices can be heard.
“To the extent that you limit the shield law, you limit who is in that marketplace,” she said.
Feinstein is not the only member of Congress seeking to limit the definition of journalists. Last week, U.S. Sen. Dick Durbin, D-Ill., sent letters to a number of organizations – including the Franklin Center for Government and Public Integrity, which runs Watchdog.org – seeking information about the legitimacy of nonprofit investigative reporters.
A spokesman for Durbin later told Watchdog.org the senator was not targeting any specific individual or group.
Boehm is a reporter for Watchdog.org and can be reached at [email protected]. Follow him on Twitter @EricBoehm87