A Senate panel's action advancing a media-shield law has sparked a heated debate over whether it is the role of Congress to define who qualifies to be a journalist.
The move has generated strong opposition from the blogosphere, conservative talk radio, and from Republican members of the Senate Judiciary Committee.
The legislative ball was set in motion on September 12 when the Judiciary Committee approved 13 to 5 the Free Flow of Information Act, which gives protections to journalists from having to reveal their sources in court.
The main point of controversy surrounded an amendment by California Democratic Sen. Dianne Feinstein, whose definition of a journalist would limit those receiving the legal protection. Feinstein said a definition was needed because she didn't want to extend the media protections to certain types of writers.
Feinstein said she "can't support it if everyone who has a blog has a special privilege ... or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I'm not going to go there," referring to the leaker of the National Security Agency surveillance program.
Feinstein's definition of a "covered journalist" is someone who gathers and reports news for "an entity or service that disseminates news and information," including freelancers, part-timers and student journalists engaged in any "legitimate news-gathering activities."
Radio talk show host Rush Limbaugh blasted the measure, asserting that the shield law is evidence of a desire by Democrats to set up "licensing" of reporters.
"So the government will decide who's a journalist and who isn't and grant licenses and approvals. And if you don't get your license and you start doing journalism, you could be sent to jail, or you could be reprimanded," Limbaugh contended.
Writing in the National Review, Michael Walsh went further, saying that the Senate version "is blatantly unconstitutional" and in violation of the First Amendment, which expressly states that "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."
Texas Sens. Ted Cruz and John Cornyn were joined by Sens. Jeff Sessions of Alabama, Mike Lee of Utah and Jeff Flake of Arizona in voting against the bill in the Judiciary Committee.
Cornyn argued that permitting Congress to decide who is a journalist was akin to licensing – traditionally anathema to a free press and was "in effect government licensing of legitimate media."
Sessions thought the definition was "too broad," while Cruz took issue
with the government having a role at all, saying by allowing the government to define journalists, corporate-owned media organizations would be favored over "citizen bloggers."
Others critical of the Senate language include Reporters Without Borders
, who believe the definition of a journalist is "too restrictive" and "would not necessarily apply to all those covering national security issues and other matters of major public interest."
Buzzmachine blogger Jeff Jarvis said that any law that "protects job descriptions is fatally flawed."
Jarvis says the definition of what constitutes a journalist should be broadened even if that means including protecting the likes of WikiLeaks and Snowden.
"The answer is to protect not the journalist but the act of journalism: that is, revealing information that is in the public interest," said Jarvis, saying that would include leakers of government secrets such as Wikileaks, Snowden, Bradley Manning, and Daniel Ellsberg — "none of whom would qualify under the proposed law but every one of whom has revealed information of vital public interest, fueling the debate that democracy should welcome."
Disclosure earlier this year of the Obama Justice Department's improper seizure of the phone records of Fox News reporter James Rosen and The Associated Press revived the stalled efforts to strengthen First Amendment protections for reporters and whistleblowers.
Many states have shield laws and while support has existed on the federal level – even by then-Sen. Barack Obama in 2008 – no momentum has been present to move them forward until recently.
The Judiciary Committee draft was generally well-received in the media, including the editorial boards of The Los Angeles Times and Washington Post.
In its editorial, The Times contended that any criticism of the Feinstein amendment as offering protection only to "established" media was "exaggerated" and asserted that despite the bill's flaws "even in its present form it would represent a victory for both a free press and an informed citizenry."
The Washington Post backed the measure,
saying, "It’s long past time for Congress to pass a law protecting journalists from being forced to disclose information about the sources, methods and content of their reporting to the government."
The Newspaper Association of America
and the Reporters Committee for Freedom of the Press
also backed the Senate legislation.
Even the ACLU's legislative counsel Gabe Rottman "expressed serious concern" with the narrow definition of who qualifies as a journalist and the national security exception, but praised its passage nonetheless. He said the ACLU would "continue to push for improvements" as it moves through the legislative process.
Most acknowledge that a similar bill introduced in the House by Texas Republican Ted Poe and Michigan Democrat John Conyers is an improvement over the Senate version. The House draft offers a broader definition of "journalist" and does not include such a wide national security carve-out as the Senate bill does.
House committee aides tell Newsmax the bill's future is reliant upon the chamber's floor schedule, but expressed optimism it could move in this legislative session.
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