Suddenly, after the recent kerfuffle arising from the Department of Justice seizing phone records of reporters and editors at the Associated Press, President Obama, through White House press spokesman Jay Carney, endorsed a federal shield law. Unfortunately, it’s an empty gesture, or maybe just plain old politics, because not only wouldn’t it have protected the AP from the DoJ’s snooping – there’s an exception when national security is at stake – a federal shield law, at least in its current form, would be so porous it wouldn’t serve much of a purpose to anyone.
As with most legislation, the devil is in the details. And when you’re trying to craft laws to protect journalists from having to disclose the identities of confidential sources, the first thing you must do is define what a journalist is. Unfortunately, that’s not so easy, because, well, what is a journalist? I’ve been working as one for almost 20 years, and I couldn’t give you a definition. What’s more, I don’t know anyone who could. More to the point, how do you cover everyone who should be covered in this day, when everybody can be his or her own publisher but not cover those who shouldn’t be protected?
To start, let’s look at the states: Two-thirds of them have adopted shield laws, and they all try to differentiate between journalists, who, the thinking goes, have good reasons for not disclosing confidential sources, and everybody else. Some take an expansive view of what constitutes a journalist. New York, for example, protects anyone “engaged in gathering, preparing [or] collecting . . . news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public.” If you work for The New York Times or Associated Press, you’re covered. What if you contribute to a blog but aren’t paid or you run your own? Are you covered? Not according to the wording in the statute because they wouldn’t be considered a “professional medium or agency.”
Some states haven’t updated their shield laws in decades. As a result their statutes slept through the rise of 24-hour cable news, citizen journalism, and social media, and ignore online reporters, bloggers, book authors, freelance writers, and even magazine staffers.
In Indiana, a journalist is someone “connected with or employed by” a newspaper, wire service, or “licensed radio or television station.” Under this statute we at PandoDaily wouldn’t be covered, nor would Slate, Salon, and other online publications. Meanwhile, Kentucky’s statute says, “Newspaper, radio or television broadcasting station personnel need not disclose source of information.” If you don’t work in one of these three media platforms, you’re not a journalist.
In contrast, some states have broader definitions. Michigan thinks of a journalist as someone “involved in the gathering or preparation of news for broadcast or publication.” The District of Columbia views news media as ”any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.” Minnesota just wants to protect the “free flow of information,” and so does Nebraska.
When it comes to protections, it depends on where a journalist makes the deal with a confidential source, and where the court is based.
On the Federal level, one of the blogosphere’s political champions has been Sen. Charles Schumer (D-N.Y.), the lead author of the Senate federal shield measure. Initially, he tried to expand on the language in the House bill by defining a journalist as any person who has the intent to disseminate information to the public, but to get the bill through committee, he had to scale back the language so his version mirrored the House measure.
The House of Representatives in 2007 passed a federal shield law, which included a last-minute amendment that required anyone seeking protection to earn “a substantial portion of [their] livelihood” from journalism. This was aimed at bloggers, who were, depending on your point of view, either citizen journalists democratizing media or opinionated loudmouths posting vitriolic screeds online between trips to the refrigerator. As the Senate worked on its version of a shield law, however, blogs moved further into the mainstream, partly because virtually every newspaper, magazine, and online news organization has co-opted them for their own sites.
Then, in July 2010, WikiLeaks released 91,000 documents related to the war in Afghanistan, and an irate Schumer announced that he would amend the Senate’s “Free Flow of Information Act” to exclude the group. Schumer contended that WikiLeaks could never capitalize on the legislation, because it does not fulfill the ”definition of a journalist,” which requires it to regularly engage in “legitimate newsgathering activities.” That’s bogus, really, because you could make a strong argument that the group did perform journalism. Because, um, what’s journalism? At any rate, the bill already gave judges the authority to waive protections if critical national security concerns hung in the balance.
And that brings us back to the Associated Press and Department of Justice. All prosecutors need to do is claim an exemption for national security, which these days they seem to do willy nilly. Which brings us full circle, because while Obama’s administration may be trumpeting his support for a federal shield law, it wouldn’t have mattered to the Associated Press, and it won’t matter for most of us.