Press protection law would endanger First Amendment by defining ‘journalist’
Published: Monday, September 23, 2013
Updated: Monday, September 23, 2013 22:09
Senator Chuck Schumer, D-N.Y., introduced a new bill called the Free Flow of Information Act of 2013, to the U.S. Senate on Sept. 12, which he claims would protect journalists and their sources from federal subpoenas in the event they report classified information to the public. In reality, the ratification of this bill would effectively grant the government the ability to determine who is a journalist and therefore subject to protection and who is not. The paradox that arises from this bill poses the following question: If the government can decide who gets to exercise their First Amendment rights and who doesn’t, is the press actually free?
Now it’s not as if a “Shield Law” for people is not vitally necessary; 40 states provide journalists protection from state-level subpoenas, but no protection from federal subpoenas that currently exists. As David Greene of the Electronic Frontier Foundation points out, most of the people indicted for disclosing federal secrets have had to rely on a “reporter’s privilege” to avoid trial. But this “privilege,” colloquially known as the right to free press in the Constitution, is often superseded by the grand jury subpoenas, and in the case of U.S.A. vs Jeffrey Alexander Sterling the Fourth Circuit of Appeals ruled that the First Amendment did not apply at all.
There are two ways in which the shield law is provided to citizens. The best way is through a “functional definition” that grants protection to anyone collecting information for disclosure to the public, and the other is a “status definition” in which protection is provided to those few affiliated with a media organization. Senator Barbara Feinstein, D-Calif., whose political views are often ripped straight from the fascists’ handbook, wanted to add an amendment to the bill which would explicitly define journalists as salaried employees of state-sanctioned media entities who meet a stringent minimum of previous employment history.
Unfortunately for Feinstein, Schumer and the other members of the Senate Judiciary Committee like their authoritarianism to creep instead of sprint, and so a compromise was reached in which “covered journalists” can be anyone who practiced journalism, salaried or not, for at least three consecutive months in the last five to 20 years. The most amazing part of this compromise was the addition of a judicial discretion provision in which the presiding judge can dismiss the case if they find that the newsgathering was done in a “lawful and legitimate manner.” In theory, this would grant justices the ability to free citizens, who might not be journalists, from tyrannical prosecution; but seeing as how nine of the bill’s 21 sponsors signed the Patriot Act, and another provision was added explicitly barring Wikileaks or people like Edward Snowden from protection, the most amazing thing about this new version of the bill is that apparently someone on the Senate Judiciary Committee has such a guilty conscience they needed to at least pretend like they weren’t violating the First Amendment.
Black’s Law Dictionary, the legal equivalent of the Oxford English Dictionary, states that “a constitutional right is a right that had been guaranteed by the United States Constitution that cannot be violated by laws or by Congress.” The First Amendment is equally unequivocal in barring Congress from abridging the freedom of speech or of the press, and so any “Shield Law” that does not employ an extremely broad interpretation of the functional definition is inherently unconstitutional. Furthermore, any future attempts at crafting legislation to protect journalists should focus on examining the content of what was disclosed instead of the merits of the person who made the disclosure. Organizations like Wikileaks and people like Edward Snowden are attacked by a system that was specifically designed to target those who were not pre-approved by the state apparatus; if the mechanisms for determining legitimate disclosures of state secrets were guided by an investigation of the veracity and public benefit provided by such leaks, we would have a system that better exemplifies the free society we all wish we enjoyed. The revelation of U.S. military personnel wantonly murdering Iraqi citizens in droves as well as the outing of the NSA’s Orwellian violations of privacy are more deserving of protection than any of the propagandist swill published by The New York Times or The Wall Street Journal.