The Senate Judiciary Committee is sending the full Senate a bill designed to shield journalists from being compelled to reveal their sources. One catch: First, the panel's members had to define who counts as a journalist.
The committee, in a 13-5 vote, approved a proposal that would protect anyone who reports news for "an entity or service that disseminates news and information," a definition that covers freelancers and part-timers for traditional and online media, but excludes posts on Twitter, blogs, or social media from independent writers not employed by a media outlet.
Sen. Dianne Feinstein (D-Calif.) insisted on limiting protection to "real reporters," according to the Los Angeles Times. "I can't support it if everyone who has a blog has a special privilege — or if Edward Snowden were to sit down and write this stuff, he would have a privilege," Feinstein said.
The vote came following the news several months ago that the Justice Department had secretly subpoenaed the phone records of Associated Press journalists.
The new protection wouldn't be absolute: Federal authorities could still "compel disclosure" from journalists if they had information that could help prevent serious crimes, including "acts of terrorism." It would also exclude coverage for groups who focus on disclosing "primary-source documents," pointedly leaving out the controversial anti-secrecy website WikiLeaks.
"It's Kevlar, not Kryptonite," says Sen. Chuck Schumer (D-N.Y.), a leading backer of the media shield legislation.
Some bloggers are far from impressed. Ed Morrissey, who writes for the conservative website Hot Air as well as The Week, says Feinstein and her Senate colleagues are trying to turn journalism into "a rather exclusive club," essentially declaring open season on any independent blogger doing investigative reporting based on inside sources.
What about writers at online sites like Hot Air and Huffington Post? Probably covered. RedState and Firedoglake? Well — are they journalists or activists? If the government gets to define it, then probably the latter — and that's going to be more true for less-commercial online sites. Will writers at those sites feel more or less free to run real reporting based on inside sources? Better yet, will the inside sources want to talk with writers whose shield is very questionable, or to reporters whose shield will be more substantial? [Hot Air]
The main beef critics have with the proposed rule is that it arguably violates the First Amendment, which says Congress shall make no law "abridging the freedom of speech, or of the press." Michael Walsh at National Review says that means that there's no need to debate the merits of the Senate bill, because it is "blatantly unconstitutional" on its face. "No law means no law," he says.
Not everyone sees this as a First Amendment issue. Doug Mataconis at Outside the Beltway argues that the Senate is not deciding who gets free speech, but who deserves a free pass from from providing relevant information to law enforcement authorities in certain cases. If you want to shield just the news media, he says, you can't get around the need to say who that is, "especially in an era when what the 'news media' actually is continues to be very much in flux."
Some people think the proposed shield law's main flaw isn't that it leaves bloggers in the cold. Trevor Timm, executive director of the Freedom of the Press Foundation, tells The Nation that the real problem is the exemption allowing the government to compel reporters to cough up their sources in cases where national security is at stake. In this view, journalists who break monumental stories with leaked documents are the ones who really need a shield, so leaving them out amounts to a pretty big hole in the shield.
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