Strike “Person” and Insert “Journalist”

Many viewed it as a gaping hole in the protection needed by the press to report on bad things government might be doing, and most think it already exists: A federal shield law to protect a journalist from being compelled to disclose his sources. Remember Deep Throat (the source, not the movie)?

While most states already protect the reporter’s privilege, the United States has no national shield law, which leaves the press at risk of being compelled to disclose the source of information or suffer the consequences. At a time when information about the government is being revealed, and itself reveals, that there is a lot of lying and concealment going on, this becomes increasingly important.  What if Edward Snowden called you instead of Glenn Greenwald?

The Senate Judiciary Committee has reported out a bill to create a national shield law, but struggled with who would be entitled to invoke the shield. A compromise was reached, requiring an amendment to the bill. The amendment struck “person” throughout the bill and replaced it with “journalist.”  They then defined journalist.


(A) DEFINITION.—The term ‘‘covered journalist’’—

(i)(I) means a person who

(aa) is, or on the relevant date, was, an employee, independent contractor, or agent of an entity or service that disseminates news or information by means of 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 through television or radio broadcast, multichannel video programming distributor (as such term is defined in section 602(13) of the Communications Act of 1934 (47 U.S.C. 522(13)), or motion picture for public showing;

(bb) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, engages, or as of the relevant date engaged, in the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters by—

(AA) conducting interviews;

(BB) making direct observation of events; or

(CC) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;

(cc) had such intent at the inception of the process of gathering the news or information sought; and

(dd) obtained the news or information sought in order to disseminate the news or information to the public; or

(II) means a person who—

(aa) at the inception of the process of gathering the news or information sought, had the primary intent to investigate issues or events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, and regularly conducted interviews, reviewed documents, captured images of events, or directly observed events;

(bb) obtained the news or information sought in order to disseminate it by means of a medium set out in subclause (I)(aa) of this section; and

(cc) either—

(AA) would have been included in the definition in subclause (I)(aa) of this section for any continuous one-year period within the 20 years prior to the relevant date or any continuous  three-month period within the years prior to the relevant date;

(BB) had substantially contributed, as an author, editor, photographer, or producer, to a  significant number of articles, stories, programs, or publications by a medium set out in subclause (I)(aa) of this section within 5 years prior to the relevant date; or

(CC) was a student participating in a journalistic medium at an institution of higher education (as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002)) on the relevant date;

The legitimate media seems to be good with this definition, both because it does an adequate job of bringing the reporters on their payroll under its protection, but at the same time excludes its enemies.  No, its enemies aren’t the overzealous agents of the government. Government agents are its closest friends, its best allies, most of the time. Government and media enjoy a symbiotic relationship, and both have come to depend on it for their mutual benefit.

The problem arises in the unusual situation where the media reports something the government doesn’t want them to report, making the government angry.  It’s not a perfect marriage, and there are persons, whether Woodward and Bernstein or Greenwald, who break the rules and forget their loyalties.

The enemies are the press pretenders.  The enemies are the ones who free ride off the “legitimate” media, the remoras that suck on sharks to survive.  While the amendment incorporates electronic media, “news websites,” within its definition, it simultaneously limits it to those whose primary purpose is to report the news.  The upshot is that it protects the “official” media to the exclusion of the rest.

Would I be a “covered Journalist” under this amendment?  I wouldn’t think so, though another part of the amendment provides that judges have sufficient discretion to bring people into the fold despite their not quite fitting the definition.  But reporting news isn’t my primary purpose, and I’m not a guy out there gathering news for public dissemination. Yet I disseminate news publicly.

Yet bloggers often receive information from sources that want their identities concealed. Someone will know the sorts of things we write about and have information that’s important, that ought to be shared publicly.  We can promise that we won’t reveal their name, but can we promise a judge won’t force us to do so?  We can always go to jail upon refusal to comply with an order, but that’s not nearly as much fun as people think and we don’t get paid enough as bloggers to suffer imprisonment for very long.  Not that we wouldn’t do it. Maybe.

Yet small town local papers, the ones that publish once a week, are 90% advertisements for plumbers and the neighborhood used car lot, publish stories about a wayward cow and have a circulation of maybe a couple thousand on a really good week, are more likely to be covered than would a law blogger.  Would Snowden be more likely to give his information to the local weekly or a law blogger?

But then, Congress will decide who is worthy of protection and who is not.  And the fact is Snowden, Julian Assange, Deep Throat and whoever will next reveal the government’s darkest secrets will call the Washington Post, the New York Times, the Guardian, and so at least there will finally be some assurance of protection for those most likely to need it.

Of course, there are other provisions to assure protection against secrets that compromise national security or aid the terrorists, but that’s a different battle.


8 comments on “Strike “Person” and Insert “Journalist”

  1. John Burgess

    Unless a blog is complete navel-gazing, I think this definition would cover most blogging. A court may decide otherwise, of course. In my narrow part of blogging, about Saudi Arabia, I have many contacts who would prefer — no, actually require — my granting them anonymity. Some of what they tell me might get them into legal trouble; most of it would likely get them into social trouble, which in Saudi Arabia can be as bad as or worse.

    The time limits in the law, though, seem to be meant to protect rent-seeking and represent a needless barrier to entry.

    1. SHG Post author

      I doubt this definition covers blogging at all, and I suspect it was purposefully written so that it doesn’t cover blogging.

      1. John Burgess

        Hmmm… I’ve been running mine for just short of 10 years. I’m cited in major media and quoted in both print and online media. I add value based on my experience with a particular topic and gain consulting work with universities as a result of it. That sounds as though it should fall into the definitions. I do rare pieces for major, international media, too.

        I suppose I could also claim 10 years’ prior experience — though it was 40 years ago — writing and editing for newspapers and commercial publications. Maybe I’d make a good test case subject?

        1. SHG Post author

          I’m cited in major media and quoted in both print and online media.

          See what you did there? It’s not that I’m suggesting you shouldn’t be included in the definition (just as I think I should be included), but I’m pretty sure the point of the definition is to keep us out.

            1. SHG Post author

              On the contrary, very impressive. But the NY Times doesn’t make a big thing about being quoted in SJ (though they should, of course). You note as validation that you were quoted in them, because they’re big media and that’s certainly impressive. And that’s who the law is written for, the was the point I was making.

  2. Ultraviolet admin

    There’s an amendment that makes it even worse [Ed. Note: Link deleted per rules.]

    Senator Feinstein has two amendments, the one linked above explicitly forbids wikileaks protection. There’s another I’m having difficulties finding a better link than [Ed. Note: Link deleted per rules.] that would require the reporter be a salaried employee. Which is awesome since so many journalists are stringers or independent contractors.

    1. SHG Post author

      The Feinstein Amendments were compromised and resulted in the Amendment that was reported out of committee. In other words, these predated the amendment in the post and the amendment in the post was the one that will be presented to the Senate. Oh yeah, and no links in comments. It’s bad enough I let you comment without a real email address, unless you’re working for the Mossad, in which case I understand.

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