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What's a Journalist?

Why a law that would help reporters protect confidential sources is hung up in Congress

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Among journalists, almost no one disputes the need for a federal shield law. Among politicians, the cause is not as noble. Journalists have been lobbying Congress for a shield law for six years, but Congress hasn't passed one yet.

Success never seemed closer at hand than it did last December, when the 2009 Free Flow of Information Act was passed out of the Senate Judiciary Committee 14-5. A different version of the bill had cleared the House the previous March by unanimous voice vote.

"Media Groups Applaud Passage. . . .Urge Full Senate Action," read a statement from the Newspaper Association of America, one of 71 media organizations in a coalition formed to lobby Congress to pass a shield law. The need was clear. "Whether it is the mistreatment of soldiers at Walter Reed Medical Center, safety problems at nuclear power plants or the massive fraud at Enron, groundbreaking stories would have remained unknown both to the public and to Congress without information from confidential sources."

And those confidential sources were getting harder and harder to protect. The NAA, which represents some 2,000 papers, said prosecutors and private litigants alike had been "emboldened" by the lack of a shield law. In 2003 the Seventh Circuit Court of Appeals in Chicago debunked the privilege that courts had tortuously constructed from Branzburg v. Hayes, a 1972 Supreme Court decision; and as an apparent result, according to a study cited by the NAA, the number of federal subpoenas reported by America's newsrooms in 2006 was twice what it had been in 2001. While only 10 percent of the subpoenas issued to media in 2006 were federal, nearly half were federal that demanded the names of confidential sources. Most states have their own shield laws, and even the weakest respect guarantees of confidentiality.

So on to the full Senate with the Free Flow of Information Act! But coalition leaders knew it wasn't so simple. Senators Dianne Feinstein of California and Dick Durbin of Illinois had voted the bill out of committee on the understanding that before the Senate took it up they'd get to amend it. "Feinstein has issues with bloggers and she always has had," says Kevin Smith, who stepped down last week as president of the Society of Professional Journalists. "She doesn't want bloggers to have any of the similar protections that legacy journalists do."

"Feinstein has always been the one taking the lead," says Laurie Babinski, an SPJ attorney. "Her reservations have had to do with the definition as it relates to bloggers and electronic journalism—where to draw the lines. SPJ has always been of the mind you define a journalist by what they're doing—a journalist is someone who commits an act of journalism. The problem is, it's not the bright line some would like to see."

Next to the categorical right to keep their mouths shut that the courts give lawyers, clergy, and spouses, what the Free Flow of Information Act offers journalists with sources to protect looks like Swiss cheese. Even so, it requires prosecutors seeking names to jump through some hoops—namely, to first persuade a federal judge of the vital importance of the information they're after and the impossibility of getting it any other way. Only with the judge's permission could a prosecutor subpoena a reporter and drag his or her butt into court.

But who deserves even this modest consideration? Any legislator who writes a shield law protecting journalists has to define journalists and justify the special treatment. We are talking, after all, about a freedom to inform, which can't easily be broken out of the bedrock freedom of speech that's guaranteed to one and all. If journalists, like lawyers, were credentialed, the law would be easy to write; but American journalists aren't a guild and God willing they never will be. A journalist, as Laurie Babinski puts it, is anyone doing journalism.

Which is? Now we're kicking the definitional can further down the road.

Former Supreme Court justice Potter Stewart got away with saying that he couldn't define pornography but he knew it when he saw it. But Stewart wasn't trying to protect pornography—who cared if his methods were crude? The authors of a shield law can't be so casual. It's not that we don't love our journalists, but few love them enough to risk erring on the side of overinclusiveness. This includes some journalists themselves.

"I do not believe in 'citizen journalism,'" began an October 6 screed from syndicated columnist Leonard Pitts, who, rest assured, is not alone. "Yes, I know that's heresy. Yes, I know the old model has changed. The monologue is now a dialogue. Yes, I know ordinary people with cell phone cameras now 'report' newsworthy events and bloggers are indispensable to the national dialogue.

"Yet I remain convinced that, with exceptions, citizen journalism is to journalism as pornography is to a Martin Scorsese film."

What had Pitts steaming was the idea that anyone would call James O'Keefe III an "exemplary" journalist—which, indeed, some Republican congressmen called the hidden camera specialist after he'd embarrassed ACORN officials last year but before he was arrested for trying to tamper with the telephones of Senator Mary Landrieu. But what worries a lot of senators about a shield law is less another O'Keefe than another WikiLeaks. Paul Boyle, the NAA's vice president for public policy, says the air went out of the shield law balloon over the summer when WikiLeaks posted about 70,000 classified U.S. military and intelligence documents. The massive security breach put Congress into a mood to restrict, not empower.

"We felt we were ready to go with this bill in the Senate when WikiLeaks happened," says Boyle. But unless the Senate passes the Free Flow of Information Act in this year's lame duck session—something Boyle doesn't actually expect—he thinks a shield law is dead for the foreseeable future. But unless the Senate passes the Free Flow of Information Act in this year's lame duck session—"the odds are pretty high," says Boyle—he thinks a shield law is dead for the foreseeable future. Boyle believes the next Congress will be much more into cutting new media down to size than doing anything that might build them up.

Which is wrongheaded, Boyle says. Sources that can trust the New York Times to protect them will leak to the New York Times, he reasons, and the Times will deal with sensitive material thoughtfully and responsibly. Sources that can't trust the New York Times will find a way to throw it out anonymously on the Internet. Besides, the Free Flow of Information Act is studded with national-security protections.

But how to draw a line between a WikiLeaks and a New York Times? To answer the question of who a "covered person" is, the Free Flow of Information Act resorted to a laundry list. A covered person was any person who "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, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters . . ."

How? "By (I) conducting interviews; (II) making direct observations of events; or (III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;"

And who "has such intent at the inception of the process of gathering the news or information sought." And who "obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks), cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means."

Also included: any "supervisor, employer, parent company, subsidiary, or affiliate of a person described" above. Not included: anyone who either was a terrorist or abetted terrorism.

This was too inclusive for Feinstein and Durbin. In April Feinstein's office proposed new language. Cutting to the chase, it drops the concept of covered person altogether and instead defines journalist.

Kevin Smith calls it a "two-tiered" definition. There is the "salaried employee, independent contractor, or agent of an entity that disseminates news or information." Then there are the people whose bona fides are sketchier, who must demonstrate they're genuine journalists by showing that in the past two years they'd met the first-tier definition for at least three straight months or produced a "significant number of articles, stories, programs, or publications."

Boyle says this proviso addresses the concern some senators have that a person under investigation for a crime "could simply post articles on the Internet, and claim that they should receive protection from releasing a confidential source of information."

Journalists considered Feinstein's revision a retreat they were willing to make to save the bill. "We still think it covers the lion's share of journalists," says Smith. "If we're covering 95 percent, we can live with that."

But nothing has come of Feinstein's proposal. The bill remains unrevised and in limbo. A spokesman for Durbin told me, "No changes have been made to the bill since it was reported out of the Judiciary Committee, though there have been plenty of discussions and drafts exchanged back and forth. I'm under the impression Feinstein hasn't signed off on anything."

Feinstein's spokesman told me, "Our office has been engaged in productive talks with stakeholders to ensure that organizations like Wikileaks are excluded. . . . The bill has not yet been scheduled for a vote, so these negotiations have not caused any delay."

I interpret this to mean: We can take our time rewriting this bill because we don't think anyone will ever vote on it anyway.

"The problem is, nothing much is getting done in the Senate," says Boyle. At the moment it's not even in session; and when it convenes after the elections there will be tax cuts and a climate bill to take up, and other issues that matter more than a shield law.

But if it ever does come up for a vote in the Senate, Boyle adds, "we believe we have more than 70 votes for the bill."   v

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