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.