The most recent congressional threat to the free press in the United States comes from California Democrat U.S. Sen. Dianne Feinstein.
In a proposed amendment to a media shield law being considered by Congress, Feinstein writes that only paid journalists should be given protections from prosecution for what they say or write. The language in her proposal is raising concerns from First Amendment advocates because it seems to leave out bloggers and other nontraditional forms of journalism that have proliferated in recent years thanks to the Internet.
“It rubs me the wrong way that the government thinks it should be in the business of determining who should be considered a journalist,” said Ken Bunting, executive director of the National Freedom of Information Coalition at the Missouri School of Journalism.
But on the other hand, Bunting said, there is a great need for federal shield law in light of recent attempts by the U.S. Justice Department to force journalists to give up information about confidential sources.
The difficulty with writing any such law — this is the third time Congress has attempted to craft a federal shield law — is that any such law would have to set standards for who counts as a journalist or what qualifies as an “act of journalism.”
There are shield laws on the books in 40 states, but they do not apply in federal court. The First Amendment of the U.S Constitution promises that the right to a free press “shall not be infringed.”
The proposed federal shield law would protect journalists from having to comply with subpoenas or court orders forcing them to reveal sources and other confidential information. The important question, of course, is how to determine that the shield law applies to one person and not another.
In other words, how do you determine someone is a journalist?
Feinstein, chairwoman of the powerful Senate Intelligence Committee (and a staunch defender of the government’s right to spy on anyone at any time), does not want to see a shield law that would protect employees of WikiLeaks and other leak-driven news organizations.
At a congressional hearing on the matter last week, Feinstein said shield laws should only apply to “real reporters.”
An amendment offered by Feinstein would extend shield-law protections to those who work as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information,” though students working for news outlets would similarly be covered. The definition seems to leave out the new tide of bloggers and citizen journalists who thrive on the Internet.