Federal Journalist Shield Law Advances

A journal entry by twitter alerts us that the US Free Flow of Information Act cleared the House Judiciary Committee last week. It is designed as a shield for the confidential sources of journalists, and the bill's sponsors intend that the definition of "journalist" be broad enough to encompass at least some bloggers. The language voted out of the Judiciary Committee stipulates that protections apply only to those who derive "financial gain or livelihood from the journalistic activity" — this could cover anybody with a blog and an AdWords account, and this worries some opponents. The Register's coverage notes "several exceptions regarding terrorism, national security, imminent death and trade secret leaks." If this act becomes law, it would override all state shield laws, some of which may now provide stronger protections. The bill seems unlikely to go anywhere any time soon as its counterpart in the Senate has received no attention, and in its present form it would likely be opposed by the Bush administration.

Comments

I don't get the rationale

[dosboot]

Either the government doesn't have the right to force you to divulge something or they do. Who I am should make no difference. The casual blogger vs non casual blogger distinction is stupid.

Re:I don't get the rationale

[starX]

Let me explain it then, the nebulous entity known as "the press" is traditionally regarded as necessary to the function of a free society. Without someone to report on the actions of elected officials, said officials would be free to act with utter impunity. An active press keeps the public informed about the actions of their elected officials, and thus (so the theory goes) those officials can be held accountable by the people whom they are elected to represent. However the press needs special protections in order to do this job.

For example, civil servants who are compelled by their consciences to reveal the criminal activities of an elected official could also be understandably hesitant to reveal these action publicly for fear of losing future opportunities for employment. A journalist's assurance of anonymity does nothing if a subpoena can compel said journalist to reveal their source, and thus our hypothetical civil servant may not come forward. The elected official's crimes continue undiscovered, and democracy is not served.

The press is commonly referred to as a "fourth estate" in that it serves a vital function for democracy but is not a part of the government. Because of the special function of reporters, they need special protection under the law to allow them to continue to do their jobs successfully. We need them to be able to continue to do their jobs in order to have an informed electorate. Journalist shield laws serve democracy.

So the real question comes down to the definition of a journalist, and this is an important distinction to make. In this case it's not who you are that matters, but what you do. As a self described casual blogger, your blogging activities serve a personal function (keeping in touch with friends, family, and the like). The information you provide to the public is of private interest, as opposed to the professional journalist (even if they are a blogger) who provides information of public interest. As with all laws, basic guidelines need to be established for the courts to rule as to whether or not someone is providing information of private interest or of public interest. If you feel you have been pigeonholed into the wrong category, this would be something for you to argue in court.

Really though the law would be doing you a favor by establishing these criteria. Say you are contacted by a civil servant, you're brother in law maybe, in the above scenario. Because of this law, you would have very clear guidelines as to whether or not you could make a genuine offer of anonymity. If you can't, you need to introduce your source to a recognized professional journalist.

Override?

[bkr1_2k]

Since when do federal laws that have lower standards override higher standards at the state level? That's like saying that the federal drinking age (in the 80s) of 18 made it mandatory for all states to comply with 18 instead of 21. That's not the case.

Re:Override?

[vertinox]

True but congress has limited power so I'll refresh your memory on their current powers:

Article 1 Section 8: The Congress shall have power

to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. You can make laws to expand on those powers, but if it is not listed then you have to make an amendment to the constitution. Those include making states respect the rights of all citizens right to vote and trial by jury regardless of race, voting at 18, and at one time to outlaw alcohol which was later repealed.

If you could find me a part of the constitution and amendments that grants the federal government the right to regulate the age one can drink alcohol then please provide it to me. The can regulate the trade of alcohol and even the sale, but the fact that if someone gives you alcohol for free and that is illegal does not seem to appear as any power in the constitution granted to the government.

Thats daangerous territory

[Anonymous Coward]

Letting our government define who are and aren't journalists is really dangerous.

I must have midded someting....

[delirium of disorder]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech*, or of the press*; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

*Except regarding terrorism, national security**, imminent death and trade secret leaks.

**"National security" never means the safety of the people living in a nation. If it did, perusing national security would mean working for a sustainable economy, a non-agressive (defensive only) military policy, or perhaps health care and highway safety. "National security" must actually mean something like, "actions taken to further enrich the military industrial complex" or "the right to invade other nations to control their resources".

Re:I must have midded someting....

[Attila Dimedici]

If someone tells me that they are going to kill another person and then goes and kills that person, why should the fact that I am a journalist make a difference in whether or not the courts/police can compel me to tell them who it is? What if the person who told me, also told me they were going to kill someone else?

Re:I must have midded someting....

[Politburo]

Yeah, you midded a lot. Specifically, the idea that the 1st amendment is not absolute, which has been around since the beginning of the nation with the Alien and Sedition acts.

Not saying I agree, but to just paste the 1st amendment and say 'wtf?' is the height of naivety.

Wall Street Journal

[iknownuttin]

FTFA: Boucher's amendment also specified that "foreign powers or agents of foreign powers"--including a government-controlled newspaper--and any "foreign terrorist organization" designated by the Secretary of State cannot receive the protections.

Now, I realize that they're aiming at, let's say, a newspaper owned by the Chinese Government, but I have this sinking feeling that it will be applied to some paper like the "Wall Street Journal" since it is now controlled by an Australian. I just see some Attorney General saying that a "Foreign Power" also applies to foreign business men. Laws are never in black and white. They can always be interpreted to mean more than they originally intended; hence, the need for courts.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Trade Secret leaks?

[Jason Levine]

Apparently, revealing the secret recipe for KFC chicken is on the same level as plotting to blow up buildings and/or kill people.

Protect the Publishers

[Doc Ruby]

The only criterion for who to protect as a "journalist" is whoever publishes. The only reason for the exception to the secrecy rules is because informing the public is more important than letting some arbitrary group of private people (a "conspiracy") talk about the secrets after they've escaped actual secrecy control. Therefore, no one who publishes the old secret is any more privileged than any other. No matter how much money their publishing corporation paid any politician, no matter who went to law school with whom.

This principle of protecting the publisher without any preference among them is essential to the open source movement. The 60-70 year old Baby Boomers running our government have finally started to catch up with current American culture and wisdom. But they need to drop the obsolete old boy protections for "journalists" with whom they have all kinds of "off the record" deals to protect their own secrets from informing the public, including the bribes that corporate mass media pay to keep both their sides of the secrecy rules in business.

the other view

[gryf]

As a libertarian I ought to celebrate a law that protects journalists. Unfortunately, at this time, protecting journalists and their sources sounds a lot like protecting Enron. Left or right, we've all been upset about the state of journalism, yet one thing we've not been short of is anonymous source.

Only 15% of americans truly trust the news providers, and since just about any story you find in the paper or hear on tv requires us trusting the reporter, and their anonymous sources, it doesn't make sense that we should be making it easier for journalists to pursue a hidden agenda. Me, I want it harder for anonymous sources to come forward. If a source has an issue with this or that policy, they should prove the strength of their conviction by allowing themselves to be named instead of hiding in the shadows. Too often journalists end up as tools for agency or bureaucratic agendas and vendettas.

Republicans and Democrats both villified the press over the Plame outing case because it protected itself and refused to expose the truth behind a high level political case. Democrats wanted the press to name the sources so as to nail Libby and by extension Cheney, Republicans wanted the same thing in order exonerate Libby and by extension Cheney. Instead, journalists ended up in jail over an unfounded assumption that they had to protect a political appointee engaging in an inter-departamental rivalry. Many have pointed out that that episode went far to undermine the freedom of the press.

If we want better reporting and more trust in the news, we should demand as much transparency in reporting as possible, not obfuscate the problems. "Don't mind the source behind the curtain!" is the cry of the journalists. "Put your sources where I can see them" is mine.

Demanding transparency and honesty from the government is futile if we don't demand the same thing from the watchdogs.

Anonymous Cowards

[An Onerous Coward]

Well, the Bush administration is against the bill, so I suppose I ought to be for it.

I think journalists often use anonymity irresponsibly. It's not just used for whistleblowers exposing shady dealings and national conspiracies. It's also used to hide legitimate conflicts of interest from public view. In the run-up to the Iraq war,

Does anyone remember that time when a source on the Iraq war, who demanded that he only be referred to as a "senior administration official", came across as a bit of a Dick?

Anonymity shouldn't be used for trivial reasons, and it shouldn't be used to give those in power a soapbox for publishing self-serving disinformation. Hint: if you're interviewing an administration official who thinks the president is about to rush us into a disastrous war, anonymity might be right for you. If you're interviewing an official who wants to use anonymity to make his pro-war opinions sound like they're coming from a more legitimate and objective source than, well, him... the American people deserve to know how credible the source is.

The law itself is probably a good idea, but journalists have lately been willing to grant anonymity to clearly undeserving sources.

Legitimacy...

[Notquitecajun]

Hopefully, this adds a little bit of legitimacy to people who actually know something of what they're writing about. The inherent problem with journalism is a journalism degree - you may be able to write a nice-sounding story, but what do you know about things like engineering, biology, history, police work, law, or anything on what is being written about?