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A shield law for journalists might seem like a good idea, but it isn’t — it’s actually a terrible idea

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A group of senators have put forward a so-called “shield law” that would define who is considered a journalist under U.S. law, and protect them from having to reveal their confidential sources or submit to other government or legal requests. This might sound like a great idea — except that it requires Congress to decide who is a journalist and who isn’t, and that’s not a good idea at all. As more than one critic of the bill has pointed out, we already have a pretty effective journalist shield law: it’s called the First Amendment to the Constitution.

The motivation behind the law is certainly understandable, and even laudable. At a time when the government is putting legal pressure on journalists in all kinds of ways — and especially investigative journalism involving leaks of classified information such as the kind Edward Snowden and Chelsea Manning have engaged in — the idea of protecting journalism from government intervention is worthwhile. But the Senate bill goes about it in completely the wrong way, and winds up doing far more damage than it does good.

The government shouldn’t be choosing who qualifies

Assange and Wikileaks

The biggest flaw in the process is obvious as soon as you read descriptions of how the senators tried to define a journalist. Although some have congratulated the group for broadening the definition from earlier versions — which more or less applied the label only to those working for traditional media outlets — one of the senators’ main goals appears to have been coming up with a definition that includes bloggers and various kinds of freelancers, but still somehow excludes WikiLeaks and Julian Assange.

The problem with doing that is that it’s almost impossible to achieve without stating in the bill itself that “everyone is a journalist, except for those who are associated with WikiLeaks, or anything like WikiLeaks.” As I and others have tried to point out a number of times, while not everyone working for the organization could be thought of as a journalist, WikiLeaks is clearly a media entity — a key part of what Harvard law professor Yochai Benkler has called the “networked fourth estate.”

Thanks to the web, being a journalist is no longer something that happens because you are employed by a specific company or have a degree from a specific institution: instead, it is something you do — and the uncomfortable reality (for some professional journalists at least) is that anyone can do it, given the proper motivation and circumstances. That’s how we get what Andy Carvin of NPR and others have called “random acts of journalism,” many of which can be as effective as the professional kind, if not more so.

Do we want to exclude anyone who might need protection just because they don’t meet the current definition of a person who “has had an employment relationship for one year within the past 20 years, or three months within the past five years [or] someone with a substantial track record of freelancing in the past five years?” I don’t think we do. We would be better off trying to define what constitutes an act of journalism that requires protecting (although that would be almost as difficult).

Journalism should be protected, not journalists

Or better still, we could just try to defend the First Amendment, which is specifically worded so that it doesn’t just apply to professional journalists, but to anyone involved in a “free press.” At the time the Constitution was written, that included everyone from Ben Franklin to the guy down the street printing pamphlets on his home-built printing press — the 18th-century equivalent of a blog. Instead of broadening the definition, the Senate is in fact severely narrowing it.

Some judges have already recognized the impact that the web and social media are having on the media, and the necessity of allowing the definition of “journalist” to be as broad as possible — the First Circuit court, in a 2011 decision involving a man who videotaped the police making an arrest, said:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [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.”

As the Electronic Frontier Foundation and other organizations like Free Press have argued, the kind of bill the Senate has proposed could actually do far more harm than good, by removing protection from those who might need it most. While the idea of a “shield law” seems like a good one, it could wind up being the exact opposite — a way for the government to legally regulate the press by including those it agrees with and excluding those it doesn’t agree with. Would society be worse off as a result? The answer is almost certainly yes.

Post and thumbnail images courtesy of Flickr users Petteri Sulonen and Carolina Georgatou

15 Responses to “A shield law for journalists might seem like a good idea, but it isn’t — it’s actually a terrible idea”

  1. Wlvdigital

    Ha ha, great banter on the subject of who is a journalist. I’ve heard the argument that all journalists are in it ‘for a buck’ before. Should people not be allowed to make money for a skill they have developed and crafted? Do you think all media organisations editorialise what their staff write? In fact there are good and bad journalists, good and bad media organisations – as there are good and bad dentists, construction workers, bakers, teachers etc. And do we ask all teachers to have the same opinions as their school or headteacher? No. Neither do we complain when construction workers build the houses that their employers ask them to build. I think the point is made, journalists cannot follow these impossibly high levels of expectation on objectivity because they are ‘in society’ just like everyone else.

    • Edmund,

      Having a story to tell is not the same thing as being a journalist. Being a journalist is telling other people’s stories, not your own, and perhaps more importantly being able to do it well. If you are determined to classify literally everyone as a journalist then the term becomes meaningless and you will have to invent a new term for all those people who currently work as professional “journalists”. Your argument that everyone is a journalist would of course hold greater weight if you could provide a link to your own journalism.

  2. ‘Journalism a profession that takes training’, saying that is like comparing a reporter with the National Enquire (Inquire) reporting on a two headed man and the New York Times reporting on the end of inflation. Ones journalist point of view will always come into play either to sell or to inform. It is sometime hard to tell which is more or less, journalism these days is a business, everyone in it is for the most part trying to make a buck, like it or not…

  3. But aside from federal regulations distinguishing between official reporters and those who are unofficial, the problems of absolute reliance of the public on the official media and the yellow journalism inherent in the official media, should require an independent assessment and granting and removal of journalist credentials–you know those little cards that journalists are issued to gain access to certain secure settings.
    We, as Americans, do not need Stalinist journalists to fabricate stories for the prettification of popular concepts.

  4. Try spending some time in jail and tell me the first amendment even exists. A shield law would not be necessary if the First Amendment had teeth. It does not. Beware of senators saying “We are here to help.” The other hand holds the knife.

  5. “we already have a pretty effective journalist shield law: it’s called the First Amendment to the Constitution”

    Thanks Matt. This point needs to get repeated until they get it.

    • Journalism is substantially more than the ability to type (in fact that’s probably the least important of the skills required). Your position is the same as saying anyone with a kitchen and some ingredients is a chef. Or anyone with a scalpel and a table is a surgeon, or ……..etc.

        • Faced with such a strong argument and clever writing it’s difficult not to conclude that in actual fact I am wrong and anyone with the ability to type is, in fact, capable of lucid, compelling and society-changing journalism.

        • Sort of …. but not really. That’s the point. Journalism is a profession that takes training and years of practice to master, like a chef or a surgeon. Everyone has an opinion, journalists understand how to put that opinion in context, who to speak to to get relevant information and other opinions, how to present that information and those opinions in an entertaining and informative manner. Most of all though they (the good ones) strive for the elusive concept of truth. People who just have opinions, well….. they just have opinions.

  6. The First Amendment does not protect journalists from having to reveal their sources. That’s why the Department of Justice is issuing subpoenas for journalists. And that’s why the shield law is important. Second, nobody left “uncovered” by the shield law would be in any worse shape than they are today.

    There are 48 states with shield laws. I don’t see anyone arguing that those should be repealed.

    Don’t let perfection be the enemy of the good. This is good news and progress to protect the people’s right to know.