The Senate's Feel-Good Shield Law

Capitol Hill's plan for journalistic protection is a toothless, arbitrary bill.

This Oct. 16, 2013 file photo shows Sen. Charles Schumer, D-N.Y. on Capitol Hill in Washington.

Schumer is well-intentioned, but his bill falls flat.

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Sen. Chuck Schumer, D-N.Y., recently announced that the Senate has the votes to pass a bill that would codify legal protections for journalists. But in defining “journalism” as a profession, Schumer’s well-intentioned bill would exclude an entire class of reporters who play a vital role in delivering news to their communities. Instead of trying to cast a tight definition of who is and isn’t a “journalist,” Congress should be protecting journalism as a whole.

Last year’s flurry of federal scandals – including the National Security Agency’s domestic surveillance and the Justice Department’s investigations of reporters – cast a renewed focus on the constitutional privileges afforded to journalists and gaps in the law that allow the government to prosecute reporters who choose to protect their sources. A new media shield law could help further protect the press from government harassment, so long as Congress understands that “journalism” is an act, not a profession.

As proposed, Schumer's bill would be a federal version of “shield laws” that already exist in 48 states. Significantly, those laws protect reporters from being compelled to identify their sources. In effect, the legislation would bolster First Amendment protections by preventing courts from punishing journalists who refuse to give up their sources. Although this is a worthy cause, the bill would limit these protections to those who fit the very narrow parameters of what Congress considers “the press.” These parameters focus on a reporter’s salary, employer and frequency of publication, and exclude those who don’t fit the traditional mold of a journalist.

[See a collection of political cartoons on Congress.]

Alarmingly, Schumer said the bill would “probably not [offer] enough protections” to cover Glenn Greenwald, the journalist for British daily the Guardian who first reported on the federal court order that required Verizon to turn over phone records to the NSA, and who also published sensitive documents leaked by Edward Snowden. (Greenwald now works for First Look Media.) This very scandal was a major motivating factor behind calls for a federal shield law, but the Senate has crafted a bill so ineffectual that it wouldn’t even protect the reporter at the center of the controversy.

Moreover, the Senate’s attempts to define journalism by place of employment miss the point entirely. Journalism isn’t a job but a service, and as the practices and tools of journalism shift with time, a journalist has to be defined by what they do, not where they work. A journalist observes, researches, gathers facts and presents these facts to his fellow citizens. Because these tasks can be performed by anyone at any level of society, almost any law that seeks to protect “journalists” will either be too inclusive and thus toothless, or will overlook non-credentialed citizens who nevertheless perform an essential service.

Thus, Congress would do much better to protect journalistic activities, which are much more easily and equitably defined than the journalistic profession. These activities include, but are not limited to, interviewing sources, conducting research and photography and videography with the intent of publishing a story in print or online or reporting on radio or television.

[See a collection of editorial cartoons on the NSA.]

By this logic, anyone performing these acts, whether a Pulitzer Prize-winning reporter or a blogger with an iPhone, should be protected under the First Amendment. Shield laws should protect reporters’ rights to keep their sources confidential and allow them to serve the public without fear of government retribution, but they are only effective when everyone practicing journalism is covered.

Instead, the Senate is giving us a toothless, feel-good bill that purports to address an important problem but will only create artificial divisions in the journalistic community. By protecting employees of for-profit media enterprises but not the vast array of independent, part-time and unpaid reporters, the bill would create a broader distinction in the public eye between “real” and “amateur” journalists, and set Washington on a slippery slope toward making further decisions on how the First Amendment is applied.

The term “public servant” has become the vogue euphemism that career politicians and government employees use for themselves, but it more aptly applies to people working for the common good and the betterment of their community. Journalists fit under this umbrella because they are a check on those in power, and our government should be applauding anyone who puts in the legwork to uncover the truth instead of drawing arbitrary lines to hinder them.