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Kurt Wimmer

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Five Myths About the Federal Shield Law

Posted: 10/29/2013 10:45 am

Free speech is the oxygen of the blogosphere. Blogs, tweets and Facebook posts couldn't have the profound influence they have rightfully earned in our new and diverse marketplace of ideas without a robust freedom to debate, to challenge, and even to be outrageous. So it's hardly surprising that when a congressional debate about protecting confidential sources mentions blogs, it touches a nerve.

That debate concerned the Free Flow of Information Act, which was approved by the Senate Judiciary Committee last month on a bipartisan, 13-5 vote. If passed by Congress, the Act would be the first statute to protect journalists from being forced to identify their confidential sources in federal court. It would build on the protections of the First Amendment (because no act of Congress, of course, can minimize those rights) and fix a serious bug in our constitutional system -- multiple federal courts now have said that the only way for reporters to protect a confidential source is to go to prison indefinitely. Many of our federal courts have held that the First Amendment simply does not allow a reporter to protect a confidential source. That's hardly a solution that reflects our country's global leadership in free expression. Although 48 states and the District of Columbia already provide such protection in state courts, Congress has never passed a federal shield law. So the Judiciary Committee's vote should give journalists reason for optimism, as Emily Bazelon of Slate has so persuasively described.

So why did debate on the Act touch such a nerve? Because when the Act creates a new privilege, it has to define who can claim that privilege, and defining "journalist" in our diverse online environment is a sensitive task. The way the Act accomplishes this delicate balance earned the endorsement of the Online News Association and other non-traditional journalists. But this issue also prompted some commentators to spread myths about the Act. For example, Free Press released a paper this month, "Acts of Journalism: Defining Press Freedom in the Digital Age," which purports to analyze the bill. Remarkably, however, the paper didn't discuss the bill itself; indeed it is unclear whether its author has even read the bill. Other bloggers, drawing from blogs rather than the Act itself, claimed the Act "is an attempt to carve out certain types of journalism that Congress is uncomfortable with," and that it is "basically a licensing law."

It's time for some level-setting here, based on the novel concept of looking at what the Act actually says rather than simply echoing the conspiracy theories about how Congress is slighting the blogosphere, or about how the Act is weak-kneed and won't protect national security reporters. These claims are simply myths that don't stand up to analysis. In fact, the Act will protect journalists -- whether they report on a blog or the New York Times, and is our very best chance to keep the people who are informing us from being treated as criminals for committing journalism.

Myth: The Free Flow of Information Act does not cover bloggers.

Fact: False. Bloggers who practice journalism will be explicitly covered by the privilege.

Free Press writes that today's "pamphleteers use iPhones and blogs instead of carbon paper, but their acts of journalism still deserve protection." That is, of course, correct, and the Act's authors agree. That's why the bill explicitly includes people who disseminate news via websites, mobile apps "or other news or information service (whether distributed digitally or otherwise)." Although many state shield laws cover only traditional media, such as newspapers and broadcasters, the Senate bill is platform-agnostic and covers all journalists, regardless of how they distribute their news.

Some also believe the Act should cover all Americans, under the theory that anyone could be a "citizen journalist" and the First Amendment requires that everyone be given the same rights as journalists. This is, of course, a classic "poison pill" advocated by those who really want to kill the bill (including some lawmakers who proposed such an amendment but also voted against the Act). A privilege for everyone would mean a privilege for no one, because Congress would never pass an act that allows every single citizen in the United States to quash a subpoena. The Act properly focuses on a medium-agnostic way to make sure it covers all those who are practicing journalism, but a suggestion that it cover all Americans is simply a smokescreen for those who would rather see the bill die.

Myth: Rather than attempting to define "journalist," the bill should focus on defining the practice of journalism.

Fact: That's exactly what the bill does.

Tricia Todd wrote in a The Huffington Post blog that Congress "needs to craft a law that protects acts of journalism rather than targeting the messengers and intimidating sources." Similarly, Free Press discusses the danger of drawing "a line between who qualifies as a journalist for the purposes of the reporter's privilege or shield-law protections." As an example, the paper cites the Second Circuit's decision in von Bulow v. von Bulow, which held that the reporter's privilege should focus on the journalist's activities, rather than occupational title.

There's just one problem with the Free Press criticism: The Free Flow of Information Act does, in fact, focus on people who practice journalism, regardless of their job title. The bill covers people who gather information "with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest[.]" That test comes directly from the Second Circuit's opinion in von Bulow -- the very test that Free Press advocates.

Myth: The bill would require the government to license journalists.

Fact: False. The argument that "defining a journalist will lead to licensing" is as old as shield laws itself. But it's just false -- "journalists" have been defined in other laws dating back to 1900, and federal laws dating back to FOIA. No "licenses" ever have been created under American law, and none could ever be required for journalism because denying a "license" would be a blatant First Amendment violation.

Rush Limbaugh and other critics have argued that the Free Flow of Information Act would create a de facto licensing system for journalists. This could never happen because the First Amendment right to publish applies to everyone. The "government" would not license journalists under the Free Flow of Information Act. Independent, life-tenured judges would determine whether a journalist is able to claim an additional privilege under the statute to protect a source, but this is not a system of licensing. It's a system of determining who can resist an otherwise valid order to testify in federal court, just like courts always have done under the attorney-client privilege, the doctor-patient privilege, and the spousal privilege.

Nonetheless, some believe that once Congress passes a shield law, it will eventually permit only state-approved "journalists" to practice journalism and claim First Amendment protections. It's sort of like saying, "if they learn to make metal, they'll build a bazooka." In fact, all of the state shield laws require judges to determine whether an individual is covered, and the federal Freedom of Information Act has defined "news media" for years for purposes of obtaining a fee waiver when requesting federal government records. None of these laws have led to "licensing" of journalists. (Any law that would "license" journalists would undoubtedly be unconstitutional and easily struck down.)

Myth: The bill would deprive non-covered journalists of their First Amendment rights.

Fact: False. The Constitution stands above any law passed by Congress, and this law will not limit the First Amendment.

James Tracy, of Activist Post, wrote that under the Senate bill, "only salaried journalists will be given the free press protections guaranteed to all US citizens by the Constitution." Similarly, in a bizarre non-sequitur, the Free Press paper describes non-traditional journalistic activities, as if these activities would somehow be limited by the bill. In the rare instance where an individual does not receive protection under the statute, that individual retains all of her First Amendment rights. In fact, Congress does not have the power to pass a bill that would deprive people of their constitutional right to publish. (And the Senate bill does not require a "salary" to claim its privilege.)

Myth: The bill would not protect national security reporters, because its "national security exception" denies the privilege to any reporting about national security or classified documents.

Fact: False. The bill's national security provisions are the more speech-protective to emerge from Congress's nine years of working on this legislation.

The bill, in fact, would prevent courts or agencies from forcing journalists to disclose sources in national security leak investigations in the vast majority of cases. The "national security' exception in leak cases is very narrow -- it applies only if an independent federal judge finds that the disclosure would materially assist the federal government in preventing or mitigating an act of terrorism or other acts that are reasonably likely to cause significant and articulable harm to national security. The bill would not require disclosure merely to identify the source for later prosecution. And the bill explicitly states that the court cannot order disclosure of the source's identity merely because that source is capable of disclosing more classified information in the future. This "exception" for national security interests is narrowly tailored, and it will provide significant and important protections for investigative reporting on national security issues.

In all, I recognize that Internet memes are pretty hard to slow down once they begin. But the meme that Congress is somehow seeking to undermine bloggers and to stop non-traditional journalists from being protected by the First Amendment is simply belied by the facts. The best remedy might be to do something truly radical -- try reading the bill. And then look at the reporters, such as author and New York Times reporter Jim Risen, who right now are threatened with imprisonment for doing their jobs. The next step is simple: Support the bill.

Note: I represent a 70-member coalition of associations and companies advocating for the Act.

 

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