Proposed Federal Shield Law: Who Would It Really Cover?

This OpenCongress widget shows what’s happening with the proposed federal shield law.

(NOTE: I’ve cross-posted this from Poynter’s E-Media Tidbits.)

Today the U.S. Congress is slated to act on H.R. 2102, a proposed federal “shield law” which would give journalists the right to refuse to testify about (or turn over to the government) information collected through the newsgathering process, or about the sources who supplied that information.

Not surprisingly, the White House has vowed to veto it, citing a fear of increased leaks. Here’s the full statement from the White House Office of Management and Budget, which has been circulated to reporters but not yet posted on OMB’s site.

If you want to follow the action on this bill, OpenCongress is a great resource. In addition to its main page on H.R. 2102, OpenCongress also offers feeds for status updates, news coverage, and blog coverage of this bill. And, of course, you can generate a widget for your site that shows the current status (see right).

What I found striking about this bill is that the version introduced in the House on May 2 defined the people the shield law would protect as those “engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.”

This language, which is identical to the Senate version of the bill (S. 1267), would seem to cover people acting independently of news organizations — including freelancers, student journalists, citizen journalists, and bloggers who perform acts of citizen journalism.

However, something happened in committee. The version reported in the House (which I believe is what Congress is considering today) has changed that definition in a small but crucial way that I think is a dealbreaker.

Here’s what it says now…

“A person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.” [Emphasis added]. It also adds exclusions for “any person who is a foreign power or an agent of a foreign power” and “any organization designated by the Secretary of State as a foreign terrorist organization.”

That phrase, “for financial gain or livelihood,” would seem to limit federal shield law protection to people who are paid to be journalists — which includes employees of news organizations, and freelancers or stringers under contract to for news orgs. I imagine could also cover journalistic efforts funded by grants, donations, or even other types of organizations (like maybe Yahoo or Google, or a PR firm). However it’s pretty clear who it would exclude from protection: Anyone who’s not getting paid to commit journalism.

I think this is a big problem. For me, it comes back to a core constitutional issue. Journalists are not licensed in the U.S. for a very important reason that goes like this: “Congress shall make no law …abridging the freedom of speech, or of the press…” That guarantee applies to everyone practicing free speech in the U.S., regardless of whether they get a paycheck or who signs it.

Seems to me that if you aren’t entitled to protect your sources or free to refuse to hand over your notes or materials to the government, you aren’t really free to practice journalism. Since journalism is fundamentally protected in this country as free speech, why should some of its practitioners warrant more legal protection than others?

I never thought I’d say this, but if this bill does make it to Bush’s desk with that particular language intact, I hope he does veto it.

Josh Wolf (an independent videoblogger who went to jail for not handing over his video footage of a protest to law enforcement) doesn't like this bill either. In his post today for CNET, Journalists need a shield law, but not this bill, he wrote: "It seems to me that in the process of codifying these protections, the law is almost a tacit endorsement for the use of of journalists as an investigative arm of the government and defines journalism, not as an act, but as an occupation. In doing so, the law doesn't serve to protect the public's right to know but instead it protects the journalists right to conduct business." Good point, I think -- especially considering what Wolf went through. Journalism is a practice, not a priesthood. At its core it's about committing acts of journalism, not about getting a degree, being employed, or even getting paid. I think a federal shield law with such exclusive language would only serve to diminish the practice and independence of journalism, especially among people who are sticking their necks out entirely on their own to do it. Note, of course, this is my own personal opinion. I am not attempting to represent the views of any other people or organizations here. But I would certainly welcome some discussion on this matter. Please comment below.

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