WASHINGTON – As the U.S. Senate debates a federal shield law to protect journalists, Sen. Dianne Feinstein has asked fellow senators a pertinent question – what exactly is a reporter?
Congress is attempting for a third time in the last six years to protect reporters from having to testify or reveal their sources in ongoing investigations. Consideration of a reporter-protection bill comes in the wake of the controversy surrounding the seizure of phone records of the Associated Press and also the order by a federal court for Fox News reporter James Rosen to testify in the trial of former CIA officer Jeffrey Sterling.
Feinstein, D-Calif., speaking at a Senate Judiciary Committee last week, feels that’s the definition of “covered people,” as the bill refers to reporters, should ensure that a new law doesn’t cover every person with the ability to post news online.
“Should this privilege apply to anyone? To a 17-year-old who drops out of school and buys a website for $5 and starts a blog,” said Feinstein.
Her amendment, which failed to pass the committee in 2009, looks to provide this protection – or shield — to salaried employees, agents and independent contractors associated with a news organization. The reason for the change, she says, is to prevent organizations such as Wikileaks from getting First Amendment privileges.
“This bill is described as a reporter shield bill,” she said, “I believe it should be applied to real reporters.”
The bill’s sponsor, Sen. Charles Schumer, D-N.Y., who was able to sneak in a comment before the curtailed hearing was adjourned, said media organizations have evolved and “there are people who write and do real journalism in different ways than they used to.”
“We are very careful in this bill to distinguish journalists from those who shouldn’t be protected. Wikileaks and those types have not been protected,” said Schumer.
In 2010, Wikileaks, an online, non-profit organization, was involved in disseminating classified diplomatic cables and thousands of documents relating to the Afghanistan and Iraq wars, divulging information never seen by the public before.
At present journalists enjoy First Amendment freedom-of-the-press privileges only at the state level. Every state, except Wyoming, has either a state law or a court-recognized privilege based on constitutional arguments.
But the laws vary from state to state.
Nathan Seigel, a First Amendment attorney at Levine Sullivan Koch and Schulz LLP, said Feinstein’s approach could leave independent bloggers in a difficult situation. The states, he said, have dealt with this in different ways but it will come down to a “functional test.”
“The courts will look at circumstances and the function being performed,” he said.
Sonny Albarado, projects editor at the Arkansas Democrat-Gazette, feels Feinstein’s definition is too narrow in today’s expanding journalism world.
But, considering the current political situation, an imperfect federal law would be acceptable.
“I definitely would have liked to have seen something stronger particularly in the area of (reporting on) national security,” he said.
The need for a federal shield law largely stems from the fact that states don’t deal with national security cases, meaning state laws won’t protect reporters in such cases.
Cases relating to the Associated Press and Fox’s James Rosen have demonstrated the eagerness of the Justice Department to get access to reporters’ records to aggressively pursue cases relating to unauthorized leaks and national security.
In these instances, Mac McKerral, former president of the Society of Professional Journalists, feels that the pending legislation is inadequate.
“If you read the [Schumer] bill in its entirety, you will quickly find that 80 percent of it is a shopping list of exceptions — including the often played trump cards used constantly by government: all things classified, all things terrorist related and all things that threaten national security,” said McKerral.
Attorney General Eric Holder, who came under intense criticism and scrutiny following the handling of the AP and Rosen cases,
released a report in July, reviewing the Justice Department’s policies towards media organizations
According to the report, prosecutors should not seek a warrant for a reporter’s records unless the material is part of an investigation. The new Justice policy does not define what role journalists play in a pending investigation. Also, the internal report instructs the agency to provide notice to reporters and organizations before going after their records, giving them a chance to appeal.
But it does give the department leeway in cases which pose “a risk to national security” or when “advance notice and negotiations would prove a clear and substantive threat to an ongoing investigation.” Again no explanation was given as to what these risks and threats could be.
The bill states that the government can request access to information held by journalists only if the notes or files can “prevent or mitigate an act of terrorism” or other acts that may harm national security.
Nathan Seigel said that this will put more of an onus on the government to prove its case for demanding information and may, in some cases, even deter it from pursuing a reporter’s files.
Seigel adds that, “The bill as it is currently drafted, the prosecution of a leaker is not… enough of a justification to override journalist privilege.”
The debate over these definitions, semantics and the role played by a journalist in an ongoing investigation will continue once the committee reconvenes in September after the Senate’s summer recess.