There is tremen-dous power associated with the process of labeling things. The United States Senate is in the process of flexing its definitional muscle as it moves forward with a shield law that is designed to allow journalists to protect confidential news sources. Along the way, however, the Senate has the complex challenge of deciding who gets defined as a journalist, and thus deserves being shielded.
This is dangerous territory because such an effort threatens to give certain citizens (journalists) more free press rights than others. The Constitution’s First Amendment is designed to protect all citizens equally. The freedom of religion provided in the First Amendment gives the congregant the same rights as the minister. The right to assemble applies equally to the bricklayer as it does to the politician.
Journalists with enhanced free press rights smacks of press exceptionalism. Given current public perceptions of poor journalistic performance and declining credibility, it is hard to justify why the government might give reporters special shield privileges. But big media like the idea of special reporter treatment, so corporations such as CBS and Time Warner are lobbying hard for passage of the legislation.
The principle behind a shield law can be defended in theory. Reporters can expose government corruption by getting leaks from sources who might provide information only on condition of confidentiality. If reporters are made to reveal their news sources in court, the argument goes, those sources would dry up for fear of retribution, and the media’s watchdog function is diminished.
The Senate shield bill, which recently passed out of the Judiciary Committee on a 13-5 vote, is called the Free Flow of Information Act. In this era, however, Congress should consider that information flows freely in many ways other than through traditional media. The Internet has democractized the function of journalism to the point where virtually every citizen can “publish” on the Web.
Senate authors of the bill ignore this new reality, giving shield protections largely to reporters who are employed in traditional media circles. Sen. Diane Feinstein of California defended this definitional limitation by saying, “I believe it [the shield bill] should be applied to real reporters.” Not covered, according to Feinstein, would be “a 17-year-old who drops out of high school … and starts a blog.”
The Senate bill extends shield protection even to former journalists who were employed as reporters for at least one year in the last 20. Thus, disgraced news fabricator and plagiarist Jayson Blair would be protected from revealing his fake sources. Feinstein’s 17-year-old blogger, with friends or relatives in city hall, would not be able to protect them from retribution should they leak info for his blog.
The Senate is too hung up on defining who is a journalist and not focused enough on the watchdog function of journalism, which today could be served by any citizen. If the Senate’s objective is to promote the flow of information, then protect that function, regardless of who serves it.
The Supreme Court weighed in on reporter privilege more than 40 years ago in the Branzburg decision, ruling that reporters had no constitutional right to withhold sources in court. Thus, a reporter is the same as a mechanic in the eyes of the Constitution.
Also of interest is a 2011 First Circuit ruling that dealt with a private citizen who videotaped a police action. That court said the right to gather information is “not one that inures solely to the benefit of the news media.” The court noted that changes in technology “have made the lines between private citizen and journalist exceedingly difficult to draw.” The court wrote that news stories could be broken by bloggers just as easily today as by newspaper reporters, and it concluded that “the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”
Given these court decisions, the Senate’s work to define who is a journalist might ultimately be a fool’s errand. The Senate should protect the function and process of journalism, and stop separating out journalists for special treatment.
Jeffrey M. McCall is a professor of communication at DePauw University in Greencastle. Contact him at email@example.com.