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Summary:

Protection for journalists via a so-called “shield law” seems like a good idea, but as Josh Stearns of Free Press notes, any such law needs to cover acts of journalism, not just journalists

A so-called federal “shield law” for journalists — legislation that would protect them from having to reveal their sources when pressured to do so by the government or the courts — seems like a great idea on the face of it. Journalists of all kinds have been targeted by the Obama administration in relation to leaks of classified information, and there are many supporters of such a law. As we’ve explained before, however, the big problem with such protections is that they require the government and/or the courts to decide who is a journalist.

Why is that a problem? Because journalism is no longer something that is only practiced by a specific group of people working for a relatively small and easy-to-define group of publications or media outlets — newspapers, TV networks, and so on. Whether traditional journalists like the term “citizen journalism” or not, the reality is that blogs, social media and other tools give virtually anyone the ability to perform what Andy Carvin of NPR has called “random acts of journalism.”

The idea isn’t so much that these kinds of acts — like the computer programmer in Pakistan who live-tweeted the raid on Osama bin Laden’s compound, or the live reports of uprisings in Egypt and Tunisia — replace traditional journalism. Instead, they broaden and expand it. How do we ensure that these kinds of acts are also protected? Media writer David Carr of the New York Times has argued that the shield law is better than nothing. But is it?

How do we define who is a journalist?

journalism

In a recent research report (PDF link) from the non-profit media organization Free Press, staffer Josh Stearns goes into some depth on this topic, providing a number of tangible examples of how difficult it is to come up with legal definitions that cover all of the potential ways in which individuals can act as journalists — without fitting what we normally think of as the journalist label:

  • Nineteen-year-old Karina Vargas was taking the train home in California when she saw police using excessive force on a young man at the station in Oakland — so she pulled out her cellphone and recorded a video of the conflict, which resulted in the shooting of Oscar Grant. Police tried to confiscate the video but she refused, and the footage was later used in a courts case against the officer who shot Grant.
  • Justin Auciello of New Jersey — an urban planner with no background or experience in journalism — started a Facebook page about hurricane damage on the Jersey Shore that evolved into a full-fledged news site for journalism about the under-covered area, one that has been honored by the White House for its community service and is used by other media outlets for research in the area.
  • Lee Roy Chapman, am amateur historian in Oklahoma, started researching the founder of Tulsa and discovered information about him that had never been reported before, and spent years digging through public records in several states to pull together a story about the violence and racism of the city’s founder that no mainstream media outlet in the state would likely ever have printed.

The point about videotaping or recording police and other authorities and then making that information public is a crucial aspect of this issue, since there have been a number of cases in which the police have confiscated such videos under the mistaken impression that they are legally allowed to do so. In a decision in one such case, Justice Kermit Lipez of the First Circuit Court of Appeals described why the First Amendment’s protections for free speech need to apply to everyone, not just accredited journalists, saying:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders [and] and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

Journalism is what needs protecting

Reporter

In a nutshell, that’s the biggest problem at the heart of the shield-law debate: how do we define who is or isn’t a journalist? In the original version of the Senate bill proposed by Dianne Feinstein, there was a long series of tests that a journalist would have to pass in order to be protected — including the length of time spent working in some kind of journalistic capacity, as well as the requirement that covered journalists must be paid by some media organization in return for their work. None of the examples used in the Free Press research paper would qualify under that definition.

The Senate bill’s definition was broadened somewhat before it was passed by the chamber in September: as the Electronic Frontier Foundation noted in an overview of the legislation (which still has to get past the House of Representatives), the definition no longer requires that a journalist be a “salaried employee” or a media organization, and it gives judges a wide degree of latitude to define someone as being covered even if they don’t fit the description, provided the court believes “that such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.”

In his Free Press report, Josh Stearns makes much the same case as U.S. Appeals Court judge Kermit Lipez did: namely, that the scope of potential “citizen journalism” actions is so broad that it is almost impossible to include all of them under a limited definition:

“In today’s climate, it makes no sense for press freedom protections to apply only to a narrow class of professionals. Everyday Americans are central to the future of journalism as news consumers, distributors and creators. We need to push for policies that protect these new participants. It’s not enough to protect traditional journalists; we must protect all acts of journalism.”

Post and thumbnail photos courtesy of Flickr users Petteri Sulonen and Jan-Arief Purwanto, and Shutterstock / wellphoto

  1. It is absolutely important to distinguish between Shield Law and 1st Amendment. They are completely different animals. The 1st Amendment prohibits prior restraint by the government–censorship–of speech. There is no “giving it teeth,” there is no “making it robust”–it is one of the most robust protections in our law and has very rarely been impinged upon successfully. As you say in this story and the prior one, the Shield Law will not impact it, because the 1st Amendment applies to everyone, period.

    The thing that drives me crazy about opposition to the Shield Law on the grounds that it requires a definition of “journalist” is that a) this will NOT impact the 1st Amendment, and b) without a definition, as you imply but don’t state here, a Shield Law would become an amazing tool for abuse. All any person or company would have to do is post a press release or blog entry about a given controversy, and the Shield Law would prevent the courts from doing discovery at trial. Say goodbye to prosecuting banks and other corporate malfeasance–they issue press releases all the time, and are now “journalists.” If you don’t think corporate lawyers would use that thing to run court systems into the ground, you are not paying attention.

    So, although I agree with much of what you say here, I am actually in favor of a Shield Law and in favor of a definition of professional journalist. Professions come with privileges and responsibilities. You don’t just get them by declaring yourself one of them, any more than you can become a doctor by posting your medical opinions on a blog. The hotheaded opposition to defining “journalist” ends up throwing the baby out with the bathwater.

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    1. @Conlaw I couldn’t agree more about conflating the First Amendment and the Shield Law. It happens too often. While the Shield Law won’t impact the First Amendment as such, how Congress defines a legitimate journalist could have lasting implications for how we understand and protect press freedom issues (such as our right to record, or credentialing issues). The quote from Judge Lipez above speaks to that point I think.

      But I agree that the Shield Law demands a definition of some kind. In the paper Ingram links to above (of which I am the author) I attempt to respond and study a number of the proposed definitions.

      But I think we can create a strong and targeted law through definitions of journalism as an act and process, rather than journalist as a person defined by employment or platform. This kind of definition can avoid the pitfalls you describe. Advocating an “acts of journalism” framework doesn’t in any way suggest that we can’t distinguish those acts from issuing press releases (as the paper makes clear).

      This is one of the best federal Shield Laws we’ve seen – but it is still problematic (including a significant national security loophole). Thanks to good case law (which the paper outlines), the judicial discretion “safety valve” should protect a wide array of acts of journalism. However, it’s an imperfect and convoluted solution. The paper does not endorse or oppose the bill, so I’m not sure “hotheaded opposition” is fair or accurate.

      The shield law is the debate right in front of us, but the paper is about a much more fundamental debate about how Americans understand the shifts in media and technology and what those shifts mean for how we defend and protect press freedom in both law and culture.

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  2. Old media journalism is, like many pre-Internet industries, under heavy competitive pressure it has never before experienced and unsure of how exactly to proceed.

    Government officials at all levels are also under unfamiliar pressure from citizen journalism. In the past they could rely the media to help them shape the narrative, but now that anyone can publish anything to a global audience their ability to control the flow of information has been drastically curtailed.

    As such, I am not surprised that a government that wants to limit citizen journalism can find allies in old media when both of them wish that the masses would just sit down, shut up, buy newspapers and watch TV news like they are supposed to.

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  3. David Cuillier, SPJ president Tuesday, October 22, 2013

    Yes, all these points are valid, and the legislation is not perfect. I agree we need to focus on the act of journalism, not who is a journalist (see SPJ’s Freedom of the Prez blog). But in the end, this is the best we are going to get and a federal shield law, even as written, WILL help journalism. That’s just a fact that most shield law experts agree with (four out of five, by my informal count). This is similar to the global warming discussion – where most of the experts take one position, but a few contrarian thoughts make the issue appear balanced. I like healthy discussion, and that’s what journalists do, but despite the flaws in the legislation the ultimate outcome should be passage – to help journalism, not just journalists. This is what’s best for society because government leakers who want to expose wrongdoing and corruption seek impact and protection by approaching professional journalists. They don’t go to professional baristas or chiropractors. Already we define journalists for the good of society – expedited review in FOIA, access to the White House, crime scenes, etc. It’s a sticky situation, I agree, but at this point it’s the most practical way for citizens to get the information they need to self-govern. Let’s keep figuring out a good way to include all of those committing acts of journalism, but in the meantime, let’s get this long-overdue shield law passed. The 800 professional journalists subpoenaed each year by federal agencies need it.
    – David Cuillier, president, Society of Professional Journalists

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  4. Apart from this discussion – which idiot with real hot informations would blow them out to any lower “caliber” than well known orgs (wikileaks), profjournalists or media titles?

    Greez from good old germany

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