The Value of a New Media Shield Law Depends on Your Definition of 'Media'

Senator Lindsey Graham needs to know what a "journalist" is. No, really, he needs to know that. He needs to know who is a member of the media and what constitutes reporting if the federal government is to give them people protection under the law. It's  a question that has become only more complex.

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Senator Lindsey Graham of South Carolina needs to know what a "journalist" is. This isn't meant to be mocking; he really needs to know that. He needs to know who is a member of the media and what constitutes reporting if the federal government is to give those people protection under the law. Since the last time Congress considered the issue, in 2009, the question has become only more complex.

At issue is the renewed call for a federal media shield law. Forty-nine states have legal protections allowing the media to protect sources of information from requests for exposure by private citizens and the government. The Feds don't. Instead, the Department of Justice has fairly vague guidelines about what is and isn't appropriate in investigating how a media outlet got a leak. That vagueness has recently given the administration trouble.

Graham, who is leading the Republican effort to codify rules, explained the conundrum to the Columbia Free Times. His question centers around the question of electronic media.

“You can sit in your mother’s basement and chat away, I don’t care. But when you start talking about classified programs, that’s when it gets to be important,” he said during a Free Times interview. “So, if classified information is leaked out on a personal website or [by] some blogger, do they have the same First Amendments rights as somebody who gets paid [in] traditional journalism?”

Interestingly, the "or" in that last question was only partially answered in the previous iteration of the bill. That legislation, introduced by Sen. Arlen Specter of Pennsylvania and championed by Sen. Chuck Schumer of New York, is the one that the Obama administration indicated last month that it would like to see resurrected. In its final version, it defined a "covered person" — that is, someone to whom the shield law could apply — with the following criteria. It is a person who:

  • 1. "With the primary intent to investigate events and procure material in order to disseminate to the public news or information" regularly gathers information (quotes, photos, documents) through interviews, direct observation, or analysis, and
  • 2. Intends to disseminate that information as it is being gathered, and
  • 3. Plans to disseminate it via broadcast, print, or electronically.

It also applies to that person's boss or employer — but not to that person if he is a terrorist.

Under this definition, as The New York Times pointed out, bloggers would have been covered. They regularly have been under state shield laws, too. In April, New Jersey extended shield protection to the owner of a local government blog.

But a lot has changed since the last time the Congress ruminated on the question. That was a time period in which Tumblr was young, Twitter saw a fraction of its current use, and Facebook had only 350 million users. Compare 2009 data on social media use with 2012. Web publishing is common to the point of ubiquity — making the definitions used in 2009 even less pertinent. What, for example, counts as "regularly" gathering information? Does Tumblr count as one of the dissemination mechanisms? Does news require more than 140 characters?

Senator Dick Durbin of Illinois isn't sure Twitter should be included in such protection. Appearing on Fox News Sunday last month, Durbin asked the same question as Graham. As transcribed by the Outside the Beltway blog:

What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection?

The problem is perhaps best illustrated by example. Let's say that a person regularly shares news stories over Twitter. He looks for interesting articles, composes a summary and a link, tweets it out. One day, a friend who works for the government sends him a classified document. The person puts that up on a file sharing site and tweets a link with a description of the file. Does that person deserve protection as a journalist? If he posted it to his blog where he comments on news items, would he then? What if he worked for Fox News, but not as a reporter?

Another example: A woman who doesn't usually tweet about the news shares a photo of the failure of a top secret weapon, sent to her by a friend in the military. Should she be protected? Is a person who stumbles onto something newsworthy a journalist?

There are clearly non-traditional media outlets that people would agree deserve protection. The Huffington Post was invited to Attorney General Eric Holder's off-then-on-the-record discussion about improving the government's rules around media investigations, for example. But in 2009, even the standard proposed in the Senate's legislation didn't pass muster in the House. As Zach Seward wrote for the Nieman Journalism Lab at the time, the House version strictly limited protection to those employed by traditional outlets.

[A]ccording to the Reporters Committee for Freedom of the Press, Sen. Chuck Schumer (D-NY) offered an amendment to the Senate version that hews toward the professional definition in the House. …

As I observed last week, the shield law obviously needs a definition that limits its scope, but the professional definition, which now seems inevitable, would exclude student journalists as well as bloggers with a day job.

(The question of student journalists was well covered by USA Today last month.)

In Turkey today, the government arrested dozens of people for sharing a tweet. It's not a great analogy to what the U.S. Congress is considering; the Turkish Twitter users weren't arrested for concealing the source of a photo, just for sharing it. But it demonstrates the increasing tension between organs of power and outlets of information.

Without the First Amendment, there would be no impetus for the government to make an attempt to provide protections for whistleblowers. As we've seen, the Department of Justice has been more than willing to test the boundaries of how and when it can conduct such investigations. So it's imperative that we get the new rules right, to — as Seward noted in 2009 — figure out where to draw the line between the needs of journalists and the needs of authority figures. Drawing it correctly requires answering Lindsey Graham's surprisingly complicated question.

Photo: A protestor in Turkey holds a police shield. (AP)

This article is from the archive of our partner The Wire.