First Amendment Train Wreck in the Making: U.S. Senate Tries to Define Who Is a Journalist

After the revelation that the Department of Justice had taken phone records from Associated Press journalists as part of a leak investigation, members of Congress reintroduced the Free Flow of Information Act, also known as the federal media shield law. The basic purpose behind the law is to protect journalists from having to reveal confidential sources to the government.

The bill’s chief sponsor, Senator Chuck Schumer (D-NY), claims it has wide support in his chamber, and has identified five Republicans who would vote to support it. It is expected to come up for a vote in April.

But the devil here is in the details. While the law does extend certain protections to some journalists, it is very particular about who exactly it covers. The Associated Press’s Donna Cossata explains:

"The bill's protections would apply to a 'covered journalist,' defined as an employee, independent contractor or agent of an entity that disseminates news or information. The individual would have to have been employed for one year within the last 20 or three months within the last five years.

"It would apply to student journalists or someone with a considerable amount of freelance work in the last five years. A federal judge also would have the discretion to declare an individual a 'covered journalist' who would be granted the privileges of the law.

"The bill also says that information is only privileged if it is disseminated by a news medium, described as 'newspaper, nonfiction book, wire service, news agency, news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program, magazine or other periodical, whether in print, electronic or other format; or thorough television or radio broadcast ... or motion picture for public showing.'"

Not protected by the proposed law? Bloggers and people who post on social media. In other words, the law almost naturally privileges journalists whose organizations have most money—like print media—rather than the most accessible forms of media that anyone can use to disseminate information quickly.

The irony of leaving bloggers out of such protections because they aren’t important enough to journalism is that there are already high-profile cases where bloggers are being pursued after breaking stories. Schumer and the other senators sponsoring the bill could easily take a look at the New York Times’ DealBook from March 17, which details how hedge fund manager David Einhorn is trying to force financial blog Seeking Alpha to unmask a blogger who leaked details of his investment in Micron Technology.

While bloggers are explicitly left out of the new shield proposal, others, like WikiLeaks, are in even more uncharted waters. When asked if WikiLeaks founder Julian Assange would be covered, Schumer said he didn’t know. Asked about First Look’s Glenn Greenwald, Schumer replied, “It's probably not enough protections to (cover) him, but it's better than current law.”

The current version before the Senate has the support of the Obama administration, which has not made any public rumblings about its exclusion of new media journalism. But other actions by the administration indicate that it does take social media very seriously, at least in foreign countries. When the Turkish government recently blocked Twitter, the White House put out a strong statement defending freedom of speech and the value of social media in that country: “We oppose this restriction on the Turkish people's access to information, which undermines their ability to exercise freedoms of expression and association and runs contrary to the principles of open governance,” said White House press secretary Jay Carney.

Without protections for new media and nontraditional journalists, the Freedom Flow of Information Act may very well end up doing little more than anointing a new set of gatekeepers—established traditional media organizations who call the shots about what leaks are published and what aren’t, instead of the relatively open social media and blog spheres.

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