Define the word “journalist.” It is not so easy in the Digital Age when everyone has a platform, the equipment and the ability to report news. Is a guy in Tuscombia, Alabama who records town council meetings, uploads them to YouTube and embeds it on his blog with comment any less a “journalist” than the members of the White House press corps? How about those who leak documents to WikiLeaks? Is Bradley Manning a journalist? Don’t we all have the ability to be journalists at any given moment with our smart phone in hand?
It is an important and difficult question, as the Senate Judiciary Committee, currently debating who should be protected by a new federal “shield law.”
Under the proposed legislation, titled “Free Flow of Information Act 2013“, journalists would not have to comply with subpoenas or court orders forcing them to reveal sources or confidential information unless a judge find there is reason to think that a crime occurred and government officials have exhausted all other alternatives. This is the third time Congress has considered a “shield law.” In the past Republicans have not supported the idea. It is difficult to believe they will support it now considering the haziness of what exactly the word “journalist” means at a time when anyone can be one.
The bill in front of the committee defines a journalist as a person who has a “primary intent to investigate events and procure material” in order to inform the public by regularly gathering information through interviews and observations. The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.
But Senator Dianne Feinstein raised concerns. “I’m concerned this would provide special privilege to those who are not reporters at all,” she said. Feinstein wondered whether it could be used to provide protections to employees of WikiLeaks, an organization that allows anonymous sources to leak information to the public.
Feinstein suggested that the definition comprise only journalists who make salaries, saying it should be applied just to “real reporters.” The sponsor of the bill, Sen. Charles Schumer, D-N.Y., was against that idea, since there are bloggers and others in the Internet age who don’t necessarily receive salaries.
Who exactly are “real reporters”? And what is a salary? If I get money from Amazon, You Tube or Google Ads for allowing advertising on my blog or video, am I not “salaried”?
“The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that,” Schumer said. “But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill.”
Maybe there is no definition of “journalist.” Journalism professor Jeff Jarvis argues “There are no journalists, just the service of journalism.”
And that is the answer, isn’t it? The law should protect the act of journalism, as we all at any moment can become a journalist.
As Tricia Todd writes for the Huffington Post, “Anyone can commit an act of journalism, and do so without getting a degree in journalism or working for any well-known media outlet. Ironically, as mainstream newspapers and networks cut back on staff, they increasingly rely on freelancers, ‘citizen reporters’, bloggers and social media to investigate and report stories.
This is an important question coming on the heels of the scandal involving the Obama administration’s criminal investigation of journalists. The Justice Department had seized the phone records of 20 Associated Press reporters over two months without giving them prior notice and had traced the phone calls and emails of a Fox News reporter. The administration cited a rarely used “Espionage Act of 1917” as the rationale for treating journalists like spies simply for doing their jobs.
If the government can treat paid journalists from large news organizations like spies, imagine the intimidation it can unleash on a citizen journalist with a blog and a smart phone?
It has been argued by UCLA law professor Eugene Volokh that when the nation’s founders wrote “Congress shall make no law abridging the freedom of the press,” they weren’t talking about protection of journalists but the protection of the platform, then the printing press, which has no grown to TV, radio and Internet. That view was supported by the Supreme Court in Lovell v. City of Griffin when Chief Justice Charles Evan Hughes defined “press” as “every sort of publication which affords a vehicle of information and opinion.”
It is platform that is protected. It is the act that is important. A journalist can be anyone. We must all be protected by shield laws, when we use a platform to practice journalism.
But a journalist? I am not even sure what one is anymore. Maybe, as Dan Gillmor suggests in Salon, we need to come up with a new word. Any suggestions?
***Editors Note*** Right now 40 states have their own shield laws for journalists, but those laws don’t apply in federal court. That means any monitoring of reporters by the federal government would be covered only under a federal shield law.