A new Senate bill to protect journalists has stirred up a hornet’s nest of criticism over an old nagging question: who in the age of WikiLeaks is a “journalist”?
A bill called the Free Flow of Information Act of 2013 was sent by the Senate Judiciary Committee last week to the full Senate for a vote.
It essentially defines a journalist as someone who “regularly” or recently works for a newsgathering, editing and distributing operation and, by the way, is not a terrorist or Julian Assange.
No, the law does not mention the WikiLeaks founder Assange by name, but his ghost looms large over the bill’s careful wording as it tries to leave him out.
Sen. Diane Feinstein, a California Democrat, insisted on limiting legal protection to “real reporters” and not, as she put it, a 17-year-old with his own website.
Feinstein and Illinois Democrat Richard Durbin worked to reach a compromise that provides broad protections to “covered journalists,” defined as someone who gathers and reports news for “an entity or service that disseminates news and information” in print or electronically.
As an additional safety valve, it allows a judge to decide whether to extend protections to “legitimate news-gathering activities” that otherwise are not clearly covered by the legislation.
Yet the bill also allows federal officials to compel journalists to disclose information that could stop or prevent violent crimes or prevent “acts of terrorism” and other harm to national security.
As Feinstein has explained, “I can’t support it if everyone who has a blog has a special privilege ... or if Edward Snowden (who leaked top-secret files to The Guardian) were to sit down and write this stuff, he would have a privilege. I’m not going to go there.”
Who does go there are the predictably infuriated dynamos of the Digital Age who charge that the bill’s definition of “covered” journalists leaves independent investigative bloggers out in the cold.
“Fascist” and “disgusting,” tweeted Drudge Report founder Matt Drudge about Feinstein’s comments on who’s a reporter. “17-year old ‘blogger’ is as important as Wolf Blitzer” of CNN.
San Francisco-based Electronic Frontier Foundation, a leading advocate for digital rights, ripped into the Senate bill’s definition of a “covered person” as one who “regularly” gathers news or information and a similar House bill’s definition of a “covered” person as one who engages in “journalism” for “financial gain or livelihood.”
Such language “arguably excludes bloggers, freelancers and other non-salaried individuals who practice the craft of journalism and need the most protection,” the EFF argues on its website.
Blogger Ed Morrissey at the conservative website Hot Air compared the proposed legislation to the bouncer at “a rather exclusive club” who decides whether you look cool enough to be allowed inside.
“Any shield law should concern itself with process and not identification,” he writes. “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.”
I sympathize. Yet, a number of prominent advocates of press freedoms reasonably have questioned whether reporters should have any special exemption at all from the civic duty of providing evidence.
The late Pulitzer Prize-winning Anthony Lewis of the New York Times, with whom I proudly served as a board member of the New York-based Committee to Protect Journalists, often argued that giving reporters an unbreakable right to protect sources could prevent those who had been ruined by false allegations from finding their accuser and getting justice.
Journalists can be as torn as anyone else by these issues. After all, some government secrets are worth keeping. The current push for shield laws comes in the wake of wretched excesses by President Obama’s Justice Department, acting under pressure from Congress to plug WikiLeaks, among other leakers.
No law will satisfy everyone, especially in an age when everybody seems to want to commit acts of journalism. But smart legislation needs to balance the government’s need to keep legitimate secrets against the public’s right to know what their government is doing.