Feds move to limit who is a ‘covered journalist’ deserving constitutional protection

Senator Charles Schumer

“Is any blogger out there saying anything — do they deserve First Amendment protection?
— Sen.  Lindsey Graham (R-S.C.)

(Source: Seattle Weekly)
(Source: Seattle Weekly)

WASHINGTON, D.C. — On Thursday, a Senate panel formed by Chuck Schumer (D-NY) voted 13-5 to move forward with legislation aimed at codifying the definition of a “covered journalist,” effectively establishing which Americans deserve protection to exercise the freedom of the press under the First Amendment — and which don’t.

Cloaked under the guise of “protecting” selected journalists from having to divulge the identities of their confidential sources, the so-called “media shield” law has the support of both high-ranking government officials as well as many members of the established media. Those in power in Washington agree that journalists deserve legal protection, but only if they get to decide who is a real reporter. While lawmakers decide who should and should not be considered a “real” journalist, one thing appears certain – bloggers and online media outlets are not held in high regard.

The committee vote allows a bill to be brought to the floor for consideration by the full Senate.

The supposed need for a bill of this nature arose from controversies earlier this year involving President Obama’s Department of Justice and Attorney General Eric Holder. In May, we learned of the DOJ’s secretly obtaining two months of telephone records for the Associated Press without notifying the news organization, as well as naming Fox News journalist, James Rozen, a co-conspirator in a case involving leaks from the State Department. Public backlash and criticism of the administration’s actions led to a review of the department by the same department accused of the inappropriate actions. The bill would likely include many proposals from Holder himself, such as notifying the news media of a subpoena in advance. In a letter to Sen. Leahy (D-VT), Holder stated that the new legislation “strikes a careful balance between safeguarding the freedom of the press and ensuring our nation’s security.”

Sen. John Cornyn, (R-TX), rebuked the Obama administration, calling the measure a diversion. “A new law is not what we need,” Cornyn said. “We find ourselves here because of the abuses of the attorney general.”

Chuck Schumer D-N.Y.
Chuck Schumer D-N.Y.
(Source: williamsburgobserver.org )

Indeed, this administration constantly diverts attention away from its most recent abuse of freedom by pointing to an even greater abuse of freedom it hasn’t committed yet. It was the Obama administration’s initial pursuit of leakers, in 2009, which led to the White House cosponsoring the second attempt by Congress to pass media shield legislation. Obama backed the reintroduced bill, a revised version of the Free Flow of Information Act, only to demand deep revisions from the Oval Office in 2009—including the exemption for leaks affecting national security. It was the White House’s opposition to the very legislation it sponsored which led to its demise in the Senate.

This bill, Congress’ third attempt at crafting a media shield law for journalists, was again reintroduced by Schumer at Obama’s request just days after the AP scandal became public. Now past committee and headed to the Senate Floor, the media shield law appears to have been revived in an attempt to distract from the Obama administration’s heavy-handed efforts to crackdown on the kind national security leaks revealed by Edward Snowden and Bradley Manning over the summer. Sen. Cornyn of Texas went so far as to say, “This bill was called for because of abuses by the Justice Department,” adding that the current administration has “been the most abusive to the press in modern times, but a new law is not what we need.”

Dianne Feinstein D-CA
Dianne Feinstein D-CA
(Source: thedailydigest.org  )

The sticking point of this particular legislation, and indeed the problem with crafting any law such as this, is determining who is covered under its protection. The original bill sought to protect any person who investigates events and obtains material to disseminate news and information to the public. But Sen. Feinstein, (D-CA) sought limit the law’s protection to “real reporters,” and specifically excluded bloggers and others engaged in alternative media.  Her amendment included the definition of a real reporter as one who: obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—.  In other words, someone who works directly or indirectly with mainstream media corporations and not those who practice non-salaried, independent journalism.

“The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).”emptywheel.net

A compromise was reached this week, The Nation reported: “defining a “covered journalist” as someone who has worked for at least one full year in the last twenty, or for a continuous three-month period within the last five years; has contributed to a “significant number” of published works within the past five years; or is a journalism student.” This narrow definition of a journalist now allows the Senate to limit who is protected by the First Amendment.

In one telling interview, Sen. Dick Durbin (D-IL) expressed his apparent dilemma to Chris Wallace, “What is a journalist today, in 2013?  We know its someone who works for Fox or AP, but does it include a blogger?  Does it include someone tweeting?  Are these people journalists and entitled to constitutional protection?”  Durbin not only labels freedom of the press as an entitlement, he goes on to suggest that the Bill of Rights is outdated, saying, “We need to ask 21st century questions about a provision in our constitution that was written over 200 years ago.”

As the Congress and Justice Department attempt to define what a “journalist” is, they miss the point about protecting the free flow of information. Any shield law should be designed to protect acts of journalism, rather than journalists, and that is the main distinction between providing a defense for journalists and attempting to create an official state approved press. Freedom of speech cannot be defined by a journalist’s paycheck, résumé, or affiliation with a mainstream media outlet.

If you are reading this article, ask yourself, Is this journalism? Does writing this article make me a journalist?  While I am not a journalist by profession, I am engaging in an act of journalism with the intent to “disseminate news and information to the public.” And that is the point; it is journalism itself, if anything, which requires protection from government. As stated in a fantastic article by emptywheel.net, “If the ultimate idea is to protect newsgathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?”

Lindsey Graham R-KY
Lindsey Graham R-KY
(Source: gawker.com )

It seems that the government will go to any length to protect its privacy as far as national security leaks are concerned, while routinely violating our Fourth Amendment rights. And in its present form, the media shield legislation awaiting the Senate vote is nothing but an attempt to limit our freedoms of both speech and press by defining as narrowly as possible who is protected by the First Amendment. The fact that the big news media companies are complicit in the federal government’s attempt to license journalists and create an official press is evidence of their continued slide toward irrelevancy. It is in their best interest to discredit bloggers, free-lancers, and social media sources while begging the government to change the rules to favor their increasingly outdated and financially troubled model.

In the American struggle to remain informed in times of great deceit, it is the truth that matters, not the delivery system. It is not the government’s place to decide who may participate in freedom of the press and who may not.  Anyone shall be a protected member of the press, beginning with their first attempt.  The founders knew this and created the ever-relevant First Amendment to apply universally, plainly stating that “Congress shall make no law…abridging the freedom of speech, or the press.”  As certain leaders attempt to paint the constitution as outdated, scrambling to “protect” us with their Orwellian-named “Media Shield Law,” anyone with an interest in free and independent media must speak loudly against the federal government’s attempt to establish a state-sanctioned media.

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The respective bill numbers in the Senate and House are S. 987 and H.R. 1962.

You can use the links below to contact your state’s congressmen and let them know that the First Amendment must apply to all of us if it applies to any of us:



About O.D. 16 Articles
A strong believer in American exceptionalism, I enlisted in the Army at 17. Twenty years later, with a perspective that comes from caring for your own children's future, my wife and I have just begun to fully appreciate the complexity of threats to our country and prosperity.