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
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.
None of my favourite journalists are protected by the Shield Law that just passed.
— Asher Wolf (@Asher_Wolf) September 12, 2013
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.